
aass_V\.llaMl 



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RECENT BRITISH LEGISLATION 
AFFECTING WORKINGMEN. 

EMBRACIKO 

^HE Report of the British Commission on Trade Disputes 
AND Combinations. 

Chronological Survey of Legislation Affecting the Legal 
Status of Trade Unions (1824-1906) and Text of Princi- 
pal Acts (including the Trade Disputes Act of 1906, in 
Effect July 1, 1907). 

The Workmen's Compensation Act of 1906 (in Effect 
July 1, 1907). 



Forming Part II of the Annual Report for 1907 of the Bureau 
OF Statistics of Labor. 



CHARLES F. GETTEMY, 

Chief of Bureau. 




BOSTON : 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 
18 Post Office Square. 

1907 



CONTENTS. 



RECENT BRITISH LEGISLATION AFFECTING WORKINGMBN. 

I. Report of thb British Commission on Trade Disputes and Com- 
binations, . . . , . 62-181 

The Majority Report 52-«6 

Recommendations summarized, . 84, 85 

Memorandum by Mr. Sidney Webb 85, 86 

Note on the Mogul Case by the Chairman, the Rt. Hon. Andrew 
Graham Murray, Lord Dunedin, with a note appended by Mr. 

Arthur Cohen, 86-88 

Memorandum on the Civil Action of Conspiracy by Mr. Arthur 
Cohen, concurred in by Lord Dunedin, Sir Godfrey Lushington, 

and Mr. Sidney Webb 88-95 

Memorandum on Allen v. Flood, 1898, by Mr. Arthur Cohen, con- 
curred in by Lord Dunedin, Sir Godfrey Lushington, and Mr. 

Sidney Webb 95-110 

Report by Sir Godfrey Lushington on — 

The TafE Vale Case 110-112 

Status of Trade Unions, 113-121 

Picketing, 121-124 

Conspiracy, 125-153 

Note by Mr. Arthur Cohen, concurred in by Mr. Sidney Webb, to 

Sir Godfrey Lushington's Report, 153 

The Minority Report, by Sir William T. Lewis, Bart, . . . 153-181 
Recommendations summarized, . 180, 181 

II. Chronological Surtby of British Legislation Affecting the 
Status of Trade Unions (1824r-1906) . — Brief Summary of 
THE Taff Vale Case 182-191 

III. Text of Principal Acts Affecting the Legal Status of 

British Trade Unions, 192-221 

The Trade Union Act, 1871, 192-201 

The Criminal Law Amendment Act, 1871, 202-206 

The Conspiracy and Protection of Property Act, 1875, . . . 206-215 
The Trade Union Act (1871) Amendment, 1876, .... 215-219 
The Trade Disputes Act, 1906 219-221 

IV. The British Workmen's Compensation Acts, .... 222-260 

Introductory, 222-227 

Text of Act of 1906, 228-250 



Approvbd by thk Statb Board of Publication. 






RECENT BRITISH LEGISLATION 
AFFECTING WORKINGMEN. 



EMBKACING 

The Report op the Royal Commission on Trade Disputes 
AND Combinations. 

Chronological Survey of Legislation Affecting the Legal 
Status of Trade Unions (1824-1906), and Text of Princi- 
pal Acts (including the Trade Disputes Act of 1906, in 
Effect July 1, 1907). 

The Workmen's Compensation Act of 1906 (in Effect July 
1, 1907). 



[491 



€1 ig 
1^« ut 0. 



RECENT BRITISH LEGISLATION AFFECTING 

WORKINGMEN. 



An order originating in the Massacliusetts Senate and adopted 
by the House of Representatives, in concurrence, on March 28, 
1907, provided for the appointment of a joint special committee to 
consist of three members of the Senate and eight members of the 
House, to sit during the recess of the General Court and to report 
to the Legislature of 1908 relative to the expediency of legislation 
within the scope of the following petitions (among others) : 

To limit and define the powers of courts in equity relative to trade dis- 
putes between employers and employees and to regulate proceedings upon 
contempts therein; and such kindred subjects of legislation, if any, as may 
hereafter be referred to it by concurrent vote of the two branches. 

To provide for compensating workmen who are accidentally injured in 
the course of their employment. 

The vital importance of the questions to be considered by this 
committee, to both workingmen and employers of labor, can scarcely 
be overestimated. This Bureau therefore deemed it expedient and 
proper to publish for the information of the legislative committee 
and the interested public the results of an exhaustive inquiry made 
by the British Eoyal Commission on Trade Disputes and Combina- 
tions, the text of the principal British acts affecting the legal status 
of trade unions, and the most recent British legislation on the 
subject of workmen's compensation for injuries sustained in the 
course of employment. 

The Commission on Trade Disputes and Combinations was ap- 
pointed by His Majesty, Edward VII, on June 6, 1903, and was 
composed of The Eight Honorable Andrew Graham Murray, Sec- 
retary for Scotland, Sir William Thomas Lewis, Sir Godfrey 
Lushington, Mr. Arthur Cohen, and Mr. Sidney Webb. This com- 
mission began its labors at once and prosecuted them with diligence, 
and on January 15, 1906, made its report, which is given on the 
following pages with other matter essential to a perfect understand- 
ing of the recommendations made. The commission gave exhaustive 
consideration to the subject of the rightful acts of trade unions, 
picketing and other incidents of strikes, the law of conspiracy, the 
liability of unions for damages in suits such as the famous Taff 
Vale case, and other cognate matters. 

The Trade Disputes Act of 1906 which was the fruit of the com- 
mission's labors is the culmination of a century-long controversy 
in Great Britain as to the extent to which the demands and princi- 

[51] 



52 STATISTICS OF LABOR. [Pub. Doc. 

pies of trade unionism mighty consistent with the public welfare, 
be recognized as the law of the land. A brief chronological survey 
of English legislation bearing on the legal status of trade unions, 
was therefore considered relevant and, together with the text of the 
more important recent enactments, is given on the following pages. 
It has not been deemed necessary in this connection to rehearse at 
length the history of the agitation for legislation to grant com- 
pensation to workingmen for injuries, an excellent treatment of the 
subject having appeared in the Bulletin of the United States Bureau 
of Labor for May, 1907. The text of the new law, in force July 1, 
1907, is however given hereinafter for convenience of reference. 

I. 

EEPORT OP THE BEITISH COMMISSION ON TEADE 
DISPUTES AND COMBINATIONS. 

The majority report was signed by The Right Honorable 
Andrew Graham Murray, Mr. Arthur Cohen, and Mr. Sidney 
Webb; Sir Godfrey Lushington objected to some of the recom- 
mendations of the majority, and a full minority report was 
made by Sir William Thomas Levns. The report as published 
consists of the following sub-divisions: 

The majority report; memorandum by Mr. Webb; note on the Mogul Case 
by the Chairman, with a note appended by Mr. Cohen; memorandum on the 
Civil Action of Conspiracy "by Mr. Cohen, concurred in by the Chairman, Sir 
Godfrey Lushington, and Mr. Sidney Webb ; memorandum on " Allen v. 
Flood " by Mr. Arthur Cohen, concurred in by the Chairman, Sir Godfrey 
Lushington, and Mr. Sidney Webb; report by Sir Godfrey Lushington; note 
by Mr. Arthur Cohen, concurred in by Mr. Sidney Webb, to Sir Godfrey 
Lushington's report; and the minority report by Sir William Thomas Lewis. 

The Majority Report. 

We, the undersigned Commissioners appointed to inquire 
into the subject of Trade Disputes and Trade Combinations, 
and as to the law affecting them, and to report on the law appli- 
cable to the same, and the effect of any modifications thereof, 
have the honor to submit to your Majesty our Report. 

1. We had first to consider what evidence we should invite 
to be given before us. After discussion we came to an unani- 
mous conclusion on the follow^ing propositions: 

That we were not concerned with the general policy of the 
law in sanctioning trade unions as institutions, but that our 
business was to take them.' as they existed. 

That the scope of the reference did not suggest any inquiry 



No. 15.] DISPUTES AND COMBINATIONS. 53 

into the law relating to trade combinations known bj the name 
of '' Trusts/' and other similar combinations. 

That as the decisions of the Courts, and especially of the 
House of Lords, were alleged to have created hardship, which 
allegation was denied, and as various proposals for the altera- 
tion of the law so as to nullify or modify the effects of the said 
decisions had been mooted, it was right to give those who main- 
tained or denied the said allegations, and who made or opposed 
the said proposals, an opportunity to be heard before us. 

2. We therefore thought it desirable to invite evidence not 
generally but on certain specific points, and we caused a circu- 
lar letter to be issued by the Secretary in the following terms : — 

^ Dear Sir — I send herewith the names of the members constituting 
the above Royal Commission, and the Terms of Reference. 

I am desired to say that the Commissioners will be glad to receive, in 
the first instance, evidence on the following points : — 

1. As to the consequences of the judicial decisions which bear on the 
subject of Trade Combinations and the conduct of Trade Disputes, and 
the status and liability of Trade Unions, particularly with reference to 
eases relative to the Trade Union Acts, 1871 and 1876, and the Con- 
spiracy and Protection of Property Act, 1875, and the Common Law 
of Conspiracy. 

2. As to any facts of importance in connection with Trade Disputes 
and Trade Combinations which have occurred since the Royal Commis- 
sion on Labour issued their Report in 1894. 

The Commissioners wish to receive evidence on these matters in order 
to assist them in the investigation whether any, and if so what, amend- 
ment of the existing Law, Civil or Criminal, relating to Trade Dis- 
putes and Trade Combinations, is desirable. 

I am desired to ask you whether you would be willing to give evi- 
dence on any of the points above indicated. 

3. These letters were sent to 227 representatives of employ- 
ers, to 72 leading representatives of trade unions, and to 18 
other persons who either desired to be heard on specific points, 
or were known to have expert knowledge of the subject. 

4. In response, some 50 representatives of employers volun- 
teered to give evidence in addition to 15 miscellaneous wit- 
nesses. 



^ This circular letter was sent out by the Secretary of the Commission at 
various dates during August and September, 1903. 



54 STATISTICS OF LABOR. [Pub. Doc. 

5. While this was the case with the employers of labor, on 
the other hand we received, with some trifling exceptions, no 
response from those representing the trade unions. 

6. The reason for this attitude was due to the following fact : 
Shortly after the announcement of our appointment the matter 
was discussed by the Parliamentary Committee of the Trade 
Union Congress, and a resolution was framed that no member 
of a union should give evidence before us. This resolution was 
discussed and adopted by the General Congress of Trade Unions 
which met in the month of September. 

7. We do not think it incumbent on us to discuss or to criti- 
cize the reasons which influenced the trade union representa- 
tives in coming to this decision. It imposed on us the duty of 
facing the situation with the knowledge that the trade unions 
were of set purpose refusing to assist us in the inquiry which 
had been committed to us. Our duty to pursue our investiga- 
tions remained plainly unaffected by the attitude of any society 
or individual, l^or indeed did the refusal of the trade unions 
to give evidence really involve us in any difficulty as to dis- 
covering what were the objections raised by them to the law 
as it stood, and what were the proposals acceptable to them for 
its amelioration. These objections and proposals already stood 
conspicuously revealed to the world not only by the reported 
speeches delivered in the course of their deliberations, but by 
the bills introduced avowedly on their behalf in Parliament. 
During the duration of our sittings these bills have been re- 
introduced in successive sessions, and in the debates and dis- 
cussions arising thereon we do not hesitate to say that we con- 
sider there will be found every possible argument in favor of 
the proposals there put forward, and that no trade union wit- 
ness, had he come before us, could have added greatly to the 
case in his favor which from other sources we have already 
before us. 

8. But while this is so with regard to proposed legislation 
the case is somewhat otherwise as regards the practices preva- 
lent in the practical conduct of strikes, and the effect of the 
present or proposed state of the law on those practices. On this 
branch of the subject we do regret the absence of trade union 
witnesses. But as that absence was self-imposed we came clearly 
to the conclusion that we should not be right on that account to 



No. 15.] DISPUTES AND COMBINATIONS. 55 

reject the testimony of those who were willing to come. We 
therefore decided that it was incumbent on ns to hear at least 
a selection of those witnesses who had expressed their willing- 
ness to attend. 

9. The inquiry even to this limited extent was protracted, 
but we did our best to narrow its limits both by the terms of 
the circular already quoted and by steadily refusing to go into 
such general topics as were covered by the Report of the Royal 
Commission on Labour, 1894. We also endeavored to take a 
fair sample of the various kinds of trades and employment. 

10. As we understood we had been selected in respect of our 
being familiar with the law of the subject we did not think it 
necessary or advisable to invite the testimony of lawyers gen- 
erally. We, however, did avail ourselves of the special inquiries 
which had been made by Mr. Askwith. 

11. The main subject of our inquiry may conveniently be 
divided into three branches : — 

A. The liability of trade union funds to be taken in execu- 
tion for the wrongful acts of agents of the union. 

B. The statute law relating to picketing and other incidents 
of strikes. 

C. The law of conspiracy as affecting trade unions. 

12. The division lines between these branches of the subject 
are not rigid, and as will be seen the topics with which they 
deal are interlinked at many points. At the same time we 
think- it will conduce to lucidity to discuss the subject under 
these three heads. Broadly speaking it may be said that the 
trade unions demand a change of the law in regard to each of 
them ; and further allege that the present state of the law differs 
from that in the past and is due to the effect of the well-known 
decisions of the House of Lords in the Taff Yale Case, 1901, 
A. C. 426, and Quinn v. Leathem, 1901, A. C. 495, and of the 
Court of Appeal in Lyons v. Wilkins, 1896, 1 Ch. 811, 1899, 
Ch. 255. 

A. The Liability of Trade Union Funds to he taJcen in Execu- 
tion for the Wrongful Acts of the Agents of the Union. 

13. In the case of the Taff Yale Railway Company, the Amal- 
gamated Society of Railway Servants, being a trade union 
registered under the Trade Union Act of 1871, and its officers, 



56 STATISTICS OF LABOR. [Pub. Doc. 

were sued by the Taff Vale Kailway Company in tort for hav- 
ing conspired to induce the workmen of their company to break 
their contracts, and also for having conspired to interfere with 
the traffic of the company by picketing and other unlawful 
means. Mr. Justice Farwell having granted an interim in- 
junction against all the defendants, the defendant trade union 
appealed on the legal question whether a registered trade union 
was liable to be sued in tort. The Court of Appeal reversed 
the decision of the Judge, but ultimately the House of Lords 
restored it, holding that a registered trade union could be sued 
in tort by the name in which it was registered under the Act. 
The grounds for the judgment were that a registered trade 
union having been invested with the statutory powers of the 
Act of 1871, it must be legally inferred that it was the intention 
of Parliament that such trade union should be liable to be sued 
in its registered name. A strong opinion was also expressed by 
Lord Macnaghten and Lord Lindley that, apart from the Trade 
Union Act, any trade union whether registered or not regis- 
tered could under the general rules of legal procedure be sued 
in tort by means of a representative suit, i.e., a suit in which a 
few members have been selected by the plaintiff to represent all 
the defendants. The case then went for trial, and verdict was 
found for the plaintiffs. The damages were assessed (or fixed 
by agreement) at £23,000 ($115,000), which sum has since 
been paid out of the union funds. ^ 

14. The judgment of the House of Lords took many by sur- 
prise, and trade unions protest against it as a decision of Ju.dges 
making a practically new law against trade unions, and nulli- 
fying the settlement of their status made by the Legislature in 
1871. Bills on their behalf have been introduced into Parlia- 
ment to alter the law as declared by the House of Lords. . . . 
Clause 3 of Mr. Whittaker's bill of 1905 may be taken as a 
sample. It is in the following terms : — 

An action shall not be brought against a trade union, or other asso- 
ciation aforesaid for the recovery of damage sustained by any person 
or persons by reason of the action of a member or members of such 
trade union or other association aforesaid. 

^ The full decision of the House of Lords is published on pages 232-240 of the 
Annual Report of the Massachusetts Bureau of Statistics of Labor, 1906. 



No. 15.] DISPUTES AND COMBINATIONS. 57 

It might perhaps be enough, in order to meet the argument, 
to point out that if liability of trade unions in actions of tort 
can be enforced under the general rules of legal procedure, this 
shows that such liability must previously have existed. For 
assuredly those rules did not create any new liability. It may, 
however, be thought desirable to ascertain from the history of 
the subject what is the foundation for the belief that trade 
unions were exempt from actions in tort, and, in particular, 
for the belief that such exemption was secured to them by the 
Act of 1871. 

15. We are satisfied that the law laid down by the House of 
Lords involved no new principle and was not inconsistent with 
the legislation of 1871. 

16. It is indeed true that that statute did not declare nor 
has any other statute declared that trade unions should be liable 
to an action in tort, and before the Taff Vale case there is not 
on record any case in which the question of the liability of a 
trade union was distinctly raised and in which a court of law 
pronounced a trade union liable. But this does not prove that 
trade unions as such possessed any special exemption from ac- 
tions of tort. On the contrary it cannot be disputed that theo- 
retically the funds of trade unions have all along through their 
members been subject to the general law of liability. When an 
individual is cast in an action of tort whatever property he 
possesses is liable to be attached for payment of damages. In 
the eyes of the law a trade union before 1871 was nothing but 
an aggregate of individuals: and there never was a time when, 
if all the individual members had been brought before the court 
in an action of tort and the tort had been proved against them 
or their agent, the property of the members, including the union 
funds which belonged to them, would not have been liable to 
make good the damage. The union might be an unlawful asso- 
ciation, but this would be immaterial. The fact that the wrong 
was done in pursuance of an unlawful purpose could be no 
excuse to the tort-feasors, nor any reason why the sufferer 
should be deprived of redress. This liability of the funds of 
a trade union in an action of tort could at any time have been 
effectively realized in case of a trade union consisting of a very 



58 STATISTICS OF LABOR. [Pub. Doc. 

small number of persons. If the liability was not enforced, 
it was not because trade unions were regarded as peculiar in- 
stitutions outside the law, but simply because of the following 
reason: An action to recover damages in respect of a tort could 
be instituted only in tbe courts of common law, and those 
courts, although they did not allow the non- joinder of defend- 
ants to be pleaded in such an action either in bar or in abate- 
ment, adopted a rigid rule that judgment could not be recovered 
against any person or persons not named as defendants in the 
action. From this it followed that no property could be taken 
in execution which was not the property of the named defend- 
ants. If, therefore, an association consisted of so large a num- 
ber of persons that it was impracticable to ascertain the names 
of all of them or to make them all defendants, the property of 
the association, as distinguished from that of the individual 
members, could not be taken in execution in a common law 
action. The difficulty, of course, was not confined to cases 
against trade unions : it equally affected cases against clubs and 
all unincorporated associations with a number of members, and, 
it may be added, whether the action was in tort or upon con- 
tract. The rule that all individuals interested should be before 
the court was in itself a just one, but it operated a denial of 
justice whenever it had to be applied on a scale so large that it 
was impossible to name all the defendants. This evil was mani- 
festly one that called for a remedy, and in course of time ex- 
pedients were devised for the purpose. They were chiefly of 
two kinds. One was incorporation — the creation, by the Leg- 
islature or by charter, of corporate bodies in various forms — 
or the granting by the Legislature to particular bodies of special 
powers to sue and be sued. The other was a relaxation by the 
courts of the rule that all persons interested should be before 
the court. When the number of persons was large, a few were 
allowed to be taken to represent all, and a decision with regard 
to these few was held binding upon all. This reform of pro- 
cedure, however, which — as appears from the cases cited in 
Lord Lindley's judgment in the Taff Yale case — dates so far 
back as the time of Lord Hardwicke, was only operative in the 
Court of Chancery, and there was confined to cases of contract, 



No. 15.] DISPUTES AND COMBINATIONS. 59 

since that court did not entertain actions for damages in cases 
of tort. The Common Law Courts which dealt with tort con- 
tinued to adhere to the ancient rule. It was in consequence of 
these difficulties in common law procedure that in practice trade 
unions continued to be unamenable to actions of tort. 

17. It was, however, not only as defendants in actions of 
tort that trade unions were kept out of the law courts. They 
were kept out in other cases and for a different reason. This 
reason was that before 1871 not only had they no sort of cor- 
porate existence at law, but they were unlawful, because their 
purposes were in restraint of trade. In consequence they could 
neither sue in tort nor sue nor be sued with respect to contract, 
whether made with members or with others, for any such pro- 
ceeding would be deemed to be a furtherance of the illegal pur- 
poses of the trade union. This unlawfulness, as has been al- 
ready said, would not have been in itself any bar to a trade 
union being sued in tort. But the result was that by a combina- 
tion of causes the presence of trade unions or trade unionists, 
as such, in the Common Law Courts either as plaintiffs or as 
defendants, either in cases of tort or in cases of contract, was 
unknown, and to all appearance it was as if they were outside 
the civil law altogether. Hence the popular notion that trade 
unionists, as such, were subject to the criminal law alone. 

18. With this state of affairs trade unionists might have 
been content, but for one thing. They had no protection for 
funds in case of embezzlement. As unlawful associations they 
could take no civil proceedings against the wrongdoer, and there 
were technical difficulties in enforcing the ordinary criminal 
law. Under these circumstances trade unions endeavored to 
take advantage of the Friendly Societies Act of 1855, 18 and 
19 Vic. c. 63, which conferred upon any association not consti- 
tuted for an illegal purpose a special power to prosecute, and 
upon the Court of Summary Jurisdiction hearing the case 
power to order the offender on conviction to restore the prop- 
erty and make further compensation up to £20. But in Hornby 
V. Close, L. R. 2 Q. B. 153, tried in 18G7, it was decided that 
a trade union by reason of its illegal purposes in restraint of 
trade was not entitled to benefit by the enactment. The conse- 



60 STATISTICS OF LABOR. [Pub. Doc. 

quence was that trade union funds were at the mercy of dis- 
honest officials. An agitation ensued and the particular hard- 
ship was temporarily met by the Act of 1869, 32 and 33 Yic. c. 
61 ; but a permanent arrangement was necessary, and the whole 
question of the civil status of trade unions came under review 
by the Koyal Commission which was presided over by Sir W. 
Erie and which led to the legislation of 1871. 

19. We may say at once that there is nothing in the history 
of that legislation (as distinguished from the words of the 
Statute) which bears on the subject of the liability of trade 
union funds for tort, but as an argument has been founded on 
the fact that Parliament abstained from providing for the in- 
corporation of trade unions — which, unless qualified, would 
have made them liable to actions of tort — it may perhaps be 
convenient that we should describe in some detail the course of 
proceedings. 

20. To begin with the Commission; it heard the unionists 
who stated their grievances, but among those grievances was not 
included the liability of trade unions to be sued in tort, because 
they had never suffered from it. If workmen had been asked 
whether they were willing that their unions should be liable to 
be sued in tort, and their funds taken in execution, they would 
presumably have objected. As it was, their desire may be gen- 
erally described to have been a desire to have protection for 
their funds, but in other respects to be left alone. They wished 
to have as little to do with the law courts as possible. 

21. In considering what it should recommend as the status 
for trade unions, the Commission was confronted with this 
difficulty. If trade unions remained unlawful associations, 
their funds would be without legal protection. If unions were 
incorporated, and otherwise altogether legalized, then, as one 
consequence, the contracts of a union with its members would 
be enforceable on either side. This result neither commended 
itself to the Commission nor was asked for by any party. Some 
middle course was necessary. The Commission did not recom- 
mend incorporation. The majority recommended a system of 
registration ^' which would give to unions capacity for rights 
and duties resembling in some degree that of corporations '^ but 



No. 15.] DISPUTES AND COMBINATIONS. 61 

which apparently would confer upon them little more than pro- 
tection to their funds in case of misappropriation, and such 
registration was to be conditional on the rules of the trade union 
not contemplating certain objects, which, in the opinion of 
the Commissioners, were reprehensible (e.g., rules against non- 
unionists). The minority recommended registration for all 
trade unions, not having a criminal object, indiscriminately; 
such a registration to carry with it protection for their funds. 
The special question of actions of tort, and the practical diffi- 
culties, under the then existing system, of enforcing liability 
against trade unions do not seem to have engaged the attention 
of the Commissioners, or to have been discussed by them. But 
certainly they did not recommend any exemption from such 
actions. 

22. As the bill passed through Parliament the question of 
liability for tort was not raised. The Government in the main 
followed the recommendation of the minority of the Commis- 
sion. They proposed a qualified legalization of trade unions 
(whether of employers or employed). The legalizing sections 
were Sections 2 and 3, 3-1 and 35 Yic. c. 31 — 

Section ii. The purpose of any Trade Union shall not by reason 
merely that they are in restraint of trade be deemed to be unlawful, so 
as to render any member of such trade union liable to criminal prose- 
cution for conspiracy or otherwise. 

Section Hi. The purposes of any trade union shall not by reason 
merely that they are in restraint of trade be unlawful, so as to render 
void or voidable any agreement or trust. 

And the qualifications on this legislation are to be found in 
Section 4; 

Section iv. Nothing in this Act shall enable any court to entertain 
any legal proceeding instituted with the object of directly enforcing or 
recovering damages for the breach of any of the following agreements, 
namely : — 

1. Any agreement between members of a trade union, as such, con- 

cerning the conditions on which any members, for the time 
being, of such trade union shall or shall not sell their goods, 
transact business, employ or be employed. 

2. Any agreement for the payment by any person of any sub- 

scription or penalty to a trade union. 



62 STATISTICS OF LABOR. [Pub. Doc. 

3. Any agreement for the application of the funds of a trade 

union : — 

(a.) To provide benefits to members; or 

(&.) To furnish contributions to any employer or workman not 
a member of such union in consideration of such em- 
ployer or workman acting in conformity with the rules 
or resolutions of such trade union; 

(c.) To discharge any fine imposed upon any person by sentence 
of a court of justice, or 

4. Any agreement made between one trade union and another; or 

5. Any bond to secure the performance of any of the above-men- 

tioned agreements. 
But nothing in this section shall be deemed to constitute any of the 
above-mentioned agreements unlawful. 

23. The broad effect of this part of the Act is that trade 
unions ceased to be any longer unlawful societies by reason of 
their purposes being in restraint of trade, and therefore ceased 
to be under any disability on account of unlawfulness to sue 
for the protection of their funds : at the same time the Act did 
not enable any court directly to enforce agreements between a 
trade union and its members, or between one trade union and 
another. The Act said nothing about actions of tort; but one 
of the results of the statute legalizing trade unions was to 
enable them to sue others in tort. As to the liability to be 
sued in tort, this, as has been shown, did not depend on the 
legality of the trade union: and if the general legal procedure 
permitted, or should come to permit, a trade union to be sued 
in tort, there was certainly nothing in the Trade Union Act to 
prevent it. • 

24. The enactment in Section 3 constitutes in effect a special 
exemption to trade unions from certain consequences which 
might otherwise follow from these purposes being in restraint 
of trade: it prevents agreements made by or with them being 
void or voidable. This exemption extended to all trade nnions, 
whether registered or non-registered, and was the only advan- 
tage conferred by the Act upon unregistered trade unions. The 
Act proceeded to enable a trade union at its discretion to reg- 
ister, and on registration such trade union became subject to 
certain regulations, and also entitled to certain advantages. 
Amongst the advantages was the exclusive right to its registered 



No. 15.] DISPUTES AND COMBINATIONS. 63 

name. After the passing of the Act, trade unions were for 
some time as little before the civil courts as they had been 
formerly. This was the result partly of Section 4 excluding 
from the courts cognizance of the contracts in which trade 
unions, whether registered or non-registered, were chiefly in- 
terested; partly of Section 9, which provided that all real and 
personal property of a registered trade union should be vested 
in trustees who were empowered to bring or defend all actions 
concerning such property; and partly of the difiiculties previ- 
ously mentioned, arising from the number of members. 

25. Turning now for the moment aside from special trade 
union legislation we find that the next step was the amendment 
of general procedure under the Judicature Acts in 1881. The 
effect of these Acts was to bridge over the differences between 
Courts of Common Law and Courts of Equity. All the courts 
became divisions of one court, the Supreme Court, and the 
distinction was abolished between legal and equitable rules as 
regards parties to sue and be sued, and in 1883 was issued a 
General Order, No. 16 of the Supreme Court, Rule 9 of which 
prescribed that where there are numerous parties having the 
same interest in one cause or matter, one or more of such 
persons may sue or be sued, or may be authorized by a court 
or judge to defend in such cause or matter, on behalf or for 
the benefit of all persons so interested. 

26. This General Order had no special reference to trade 
unions, and, for a time, was not utilized in their case: and, as 
before, no action was brought against them in tort. But in 
1893 occurred the case of '" Temperton v. Russell," L. R. 1893, 
1 Q. B. 715, in which officials of three trade unions were made 
defendants to represent all the members, and on their objecting, 
it was held by the Court of Appeal that the order was not 
applicable to the case of a trade union, because the words of 
the order ^' numerous parties having the same interest in one 
cause or matter " could only be satisfied by parties who had, 
or claimed to have, a beneficial proprietary right which they 
were asserting or defending, and this was not so in the case of 
a trade union. This decision proceeded, it is obvious, on general 
grounds which had nothing to do with the question whether 
trade unions ought to be exempt from actions in tort. It was 



64 STATISTICS OF LABOR. [Pub. Doc. 

a decision of a very high, though not the highest, legal authority 
that trade unions could not be so sued, and it was naturally 
inferred that if they could not be so sued, they could not be 
sued at all: at that time it had not been suggested that under 
the Act of 1871, a registered trade union could be sued in its 
registered name. 

27. The decision in Temperton t^. Russell was still in force, 
when, in 1894, the Royal Commission on Labour delivered their 
report. Accordingly the Commissioners naturally assumed that 
a trade union could not be effectively sued in tort. They did 
not express any opinion on the question, whether as a matter 
of principle or expediency trade unions ought to be liable to 
be sued in tort. But an important section of the Commission 
suggested that the time might come when it might be expedient 
for a trade union of employers and a trade union of employed 
to be able to make with each other binding agreements con- 
cerning the terms of employment for a limited period, so that 
in case of default the funds of the defaulting union should be 
liable for the damages. And they pointed out that for this 
purpose two changes in the law would be necessary: (1) a 
modification of Section 4 of the Trade Union Act, which forbids 
such agreements from being directly enforced; and (2) a grant 
to trade unions of partial or conditional incorporation so as 
to remove the difficulty arising from numbers and the want 
of legal personality. 

28. But four of the Commissioners, viz., Mr. Abraham, Mr. 
Austin, Mr. Maudsley, and Mr. Tom Mann further reported 
generally on the subject of the liability of trade unions to be 
sued either in tort or in contract: 

One proposal made to the Commission by several witnesses appears 
to us open to the gravest objection. This suggestion is, that it would be 
desirable to make trade unions Hable to be sued by any person who had 
a grievance against their officers or agents. To expose the large ainal- 
gamated societies of the coimtry, with their accumulated funds, some- 
times reaching a quarter of a million sterling, to be sued far damages 
by any employer in any part of the country, or by any discontented 
member or non-unionists for the action of some branch secretary or 
delegate, would be a great injustice. If every union were liable to be 
perpetually harassed by actions at law on account of the doings of 
individual members; if trade-union funds were to be depleted by law- 



No. 15.] DISPUTES AND COMBINATIONS. 65 

yers' fees and costs, if not by damages and fines, it would go far to 
make trade miionism impossible for any but the most prosperous and 
experienced artisans. 

The present freedom of trade unions from any interference by the 
courts of law — anomalous as it may appear to lawyers — was, after 
prolonged struggle and Parliamentary agitation, conceded in 1871, and 
finally became law in 1876. Any attempt to revoke this hardly won 
charter of trade-union freedom, or in any way to tamper with the 
voluntary character of their associations, would, in our opinion, pro- 
voke the most embittered resistance from the whole body of trade 
unionists, and would, we think, be undesirable from every point of 
view. 

This opinion no doubt represents the views of trade unionists 
that trade unions ought to be exempt from liability to be sued, 
but the assumption that such exemption had been obtained by 
the legislation of 1871 is, as we have shown, mistaken. As 
regards the Act of 1876 that Act amended the definition of 
trade unions and made some minor changes, but did not touch 
.either status or civil liability. 

29. In 1901 the decision in Temperton v. Russell came under 
review by the House of Lords in the case of Duke of Bedford v. 
Ellis and others (L. R. 1901 A. C. 10) which was an action 
not against trade unionists, but against a number of occupiers 
of premises in C event Garden market. The House of Lords 
overruled Temperton v. Russell and held that General Order 
No. xvi. Rule 9, was universal in its application. 

30. Such was the state of the law when the Taff Yale railway 
ease came before the House of Lords in 1901. In the first 
place, expounding the Trade Union Act of 1871, they held 
unanimously that from the provisions in that Act concerning 
registered trade unions there is to be legally inferred an inten- 
tion of Parliament that a trade union might be sued in tort in 
its registered name, with the consequence that trade-union funds 
would be liable for any damages that might be awarded. Sec- 
onding — apart from the Trade Union Act — Lord Macnaghten 
and Lord Lindley expressed an unhesitating opinion that under 
the General Order, No. xvi., as interpreted in Duke of Bedford 
V. Ellis, any trade union, whether registered or not, could be 
sued in tort by means of a representative action. 

31. We have given this detailed narrative in order to throw 



66 STATISTICS OF LABOR. [Pub. Doc. 

light upon two questions — how it came about that trade unions 
did so long enjoy a practical immunity from actions of tort, 
and what are the circumstances which induced the notion so 
generally entertained that this immunity had been secured by 
the Act of 1871 as a privilege of trade unions. But when the 
circumstances come to be sifted, it is manifest that — with 
the exception of the comparatively recent decision in Temperton 
V. Russell, which, though delivered in a trade-union case, was 
on a point of general procedure having no special reference to 
trade unions, and which is now proved to have been erroneous; 
and with the exception of the assumptions of the Royal Com- 
mission on Labour of 1894, which were based on that decision 
— no assurance of such immunity has ever been held out ; no 
public commission as a body has represented that they ought to 
be exempt; no Government has promised that they would be 
exempt by forthcoming legislation ; and no judge has pronounced 
that they are exempt. In short, it turns out that the notion 
of a trade union having been intended to be specially exempted 
from actions of tort is a mere misconception resting on no other 
foundation than long practical immunity, which was simply 
the result of defects in general legal procedure that have now 
been remedied on general considerations of equity quite irre- 
spective of trade unions and trade-union law. And the Taff 
Yale case shows that, even if the rules of general legal procedure 
were not available in case of trade unions, nevertheless under 
the Act of 1871 registered trade unions would be liable to be 
sued in tort. 

32. It remains now to consider the question on the ground 
of justice and equity, and here the objections against disturbing 
the law as laid down in the Taif Yale case appear insurmount- 
able. There is no rule of law so elementary, so universal, or 
so indispensable as the rule that a wrong-doer should be made to 
redress his wrong. If trade unions were exempt from this liabil- 
ity they would be the only exception, and it would then be right 
that that exception should be removed. That vast and powerful 
institutions should be permanently licensed to apply the funds 
they possess to do wrong to others, and by that wrong inflict 
upon them damage, perhaps to the amount of many thousand 



No. 15.] DISPUTES AND COMBINATIONS. 67 

pounds, and yet not be liable to make redress out of those funds, 
would be a state of things opposed to the very idea of law and 
order and justice. 

33. On what grounds can such a claim be supported ? Trade 
unions which originally were looked upon as illegal combinations 
have made out their claim to enfranchisement and existence. 
But having done so they cannot put their claims higher than to 
sav that thev are institutions which are beneficial to the com- 
munity as a whole. But so are many other institutions — 
banks, railways, insurance companies, and so on. It may have 
been right to provide, as has been done, that the courts shall 
not have power directly to enforce agreements between trade 
unions and their members in the same manner as they can in 
the case of shareholders and policy holders in the institutions 
above mentioned. But when trade unions come in contact by 
reason of their own actions with outsiders, and ex hypothesi, 
wrong those outsiders, there can be no more reason that they 
should be beyond the reach of the law than any other individual, 
partnership, or institution. Such a claim has indeed in former 
times been made by the spiritual as against the civil authority, 
and has been consistently disallowed. What was denied to 
religion ought not in our judgment to be conceded to trade 
unionism. 

34. In the discussion thus far it has been necessarily made 
matter of assumption that the trade union has done some act 
from which a liability to pay damages ensues: or, in other 
words, that having so acted any association other than a trade 
union would be liable. It is thus at once apparent how branches 
B and C of the subjects we have laid do'^vn for discussion are 
interlinked with branch A, because the practical as distinguished 
from the theoretical liability of trade-union funds will largely 
depend on the law as to branches B and C. Before, however, 
we pass to the consideration of these subjects, there is something 
to be said on two other topics, viz., the law of agency and the 
position of benevolent funds. 

35. The torts in respect of which trade unions may be sued 
are necessarily torts committed by agents, for trade unions, like 
all other aggregate bodies, can only act by means of agents. 



6S STATISTICS OF LABOR. [Pub. Doc. 

There are certain principles of tlie law of agency which are of 
general application, and will be found to apply to trade unions 
just as they do to all other persons or bodies. In all cases the 
plaintiff who seeks to render the principal liable for the tort 
committed by the ag6nt has to prove (1) that a wrong was 
done to him; (2) that the wrong-doer was an agent; and (3) 
that the agent, in doing the wrong, acted within the scope of his 
employment. 

36. These three matters depend in one sense on questions of 
fact, and as facts infinitely vary it is obviously impossible ante- 
cedently to set forth what facts will and what will not constitute 
liability. But in regard to (2) and (3) — for as to (1) no 
comment is required — it is obvious that trade unions are in a 
somewhat peculiar position in two respects. The first is as 
regards to what are known as their '^ branches/' which are often 
in a semi-independent position to the union as a whole or its 
central executive. It is not unnaturally looked on as a hardship 
that the funds of the whole union may be rendered liable by 
the unauthorized act of some branch agent. We recommend that 
means shall be furnished whereby the central authorities of a 
union may protect themselves against unauthorized and imme- 
diately disavowed actions of branch agents. The other consists 
in the fact that registered trade unions are, though not incorpo- 
rated, held liable as if they were incorporated. The principles 
governing the application of the rules of agency to bodies so 
constituted have been carefully stated in the case of Denaby v, 
Yorkshire Miners' Association, and we are of opinion that trade 
unions would have no just ground of complaint if the law is 
applied to them strictly in accordance with the principles there 
laid down. We are, however, divided in opinion whether it is 
possible or expedient to endeavor to embody these principles 
in a statutory enactment, and therefore refrain from making 
any recommendation on this point. 

37. As regards non-registered trade unions, they have not yet 
been made the subject of a legal decision, but we conceive that 
the funds can be made liable only by means of a representative 
action, and it follows that two conditions must be satisfied in 
order to make those funds liable for the acts of agents: — (1) 



No. 15.] DISPUTES AND COMBINATIONS. 69 

Such agents must be persons who can properly be considered 
to be the agents of all the members, and must be acting within the 
scope of their agency; (2) the funds must be property which 
would have been taken into execution or attached in an action 
in which all the members had been made defendants. 

38. Although unions may exist for the purposes, inter alia, 
of a benefit society, the funds of the union for whatever purpose 
are in law a massed fund, and as such liable to be taken into 
execution in accordance with the principles above laid down. 
It is often represented that this is a great hardship on those 
who have contributed to the benefit funds, and that this hardship 
is not lessened by the prevalent though erroneous belief that 
trade-union funds were immune from outside attack. To sepa- 
rate the funds under the law as it at present stands would 
require a very elaborate scheme of trust. We think such sepa- 
ration should be made easier by statutory enactment. The 
Chairman and Mr. Cohen consider that, in accordance with 
the views already expressed, such separation would have to 
be accompanied by the condition that the funds so separated 
should not be available for what may be termed militant as 
distinguished from purely benevolent purposes. In other words, 
they would have to be confined to sick, accident, and super- 
annuation funds, and not extend to out-of-work funds. Mr. 
Webb thinks that the definition of the Trade Union (Provident 
Funds) Act, 1903, should be followed with the object of placing 
out-of-work funds in the same position. 

39. We have discussed the question so far historically and 
upon its merits, but apart from evidence as to the effect of the 
Taff Vale judgment. As we have pointed out, the evidence on 
the question of effect has only been proffered on the employers' 
side. So far as it is concerned it is practically unanimous, and 
asserts clearly that the effect of the judgment has been to make 
trade unions much more careful than heretofore in seeking not 
to infringe the law : with the result that strikes have been less fre- 
quent, that in the conduct of trade disputes there has been less 
violence and intimidation, and that the disputes themselves have 
been easier to settle than was the case before the law was author- 
itatively laid down. 



70 STATISTICS OF LABOR. [Pub. Doc. 

B. — The Statute Law Relating to Picketing and Other Inci- 
dents of Strikes. 

40. We have made use of the term " picketing " because 
although it is not a legal term — not being defined in any 
Statute — it is well understood, and much controversy turns 
on the methods of picketing to be employed. At the same time 
we propose to discuss under this head the various offences which 
have been created by the law in order to protect persons 
from intimidation, molestation, etc. In this case also we think 
it expedient to preface our remarks by a short historical 
retrospect. 

41. Sir James Stephen, in the third volume of his History 
of the Criminal Law, gives an interesting summary of the 
history of offences relating to trade and labor. He explains the 
common law and the statute law against engrossing, forestalling, 
and regrating — laws which were evidently opposed to ^' a free 
course of trade," so far, at least, as this depends upon unre- 
strained competition and speculation. The learned author then 
gives an account of the long series of enactments passed against 
combinations of workmen, whether for raising wages, or for 
any other purpose. Until very recent times it was considered 
the special duty of the Legislature, whether in the interests of 
the wage earners, or in those of the employers or consumers, 
to prescribe the rate of wages and other conditions of employ- 
ment. In fact, for a very considerable period, a workman's 
wages and hours of work were fixed by Acts of Parliament or 
by justices of the peace. All agreements and combinations of 
workmen for advancing wages or lessening their usual hours of 
work were not only declared to be null and void, but were made 
criminal offences subject to severe punishment. 

42. In 1824, by 5 Geo. 4 c. 95 the combination laws were all 
repealed. The Legislature, however, thought that having done 
so it would not be safe to leave the law standing on common 
law and statutory indictable offences such as assault, etc., but 
proceeded to enact that certain acts of coercion as well as com- 
binations to commit them should be criminal offences summarily 
punishable. 

43. The Act of 5 Geo. 4 c. 95 only stood for one year and 



No. 15.] DISPUTES AND COMBINATIONS. 71 

was replaced hj the Act of 1825. This Act, 6 Geo. 4 c. 129, 
also made certain specified acts, many of which were and some 
of which were not indictable at common law, punishable by a 
Court of Summary Jurisdiction. It prohibited, without de- 
fining, molestation and obstruction, and under this head and 
also under the head of Common Law conspiracy to injure, 
workmen were in Reg. v. Rowlands, 1851, 17 Q. B. Ad. E. 671, 
convicted of an offence, although what they had done was by 
way of peacefully persuading. In consequence it was, by the 
Amending Act of 1859, 22 Vic. c. 34, provided that (in the 
cases in which combination was permitted by Statute) no 
person should by reason merely of his endeavoring peaceably, 
and in a reasonable manner, and without threats or intimidation, 
direct or indirect, to persuade, etc., be deemed guilty of molesta- 
tion or obstruction within the meaning of the said Act of 1825, 
or should therefore be subject to a prosecution or indictment 
for conspiracy. 

44. The Act of 1859 was in its turn replaced by the Criminal 
Law Amendment Act, 1871, which repealed the Acts of 1825 
and 1859, and by Section 1 made it penal to molest or obstruct 
any person, in manner defined by the section, with a view to 
coerce such person, etc. : and the definition was that a person 
is to be deemed to molest or obstruct another if he watch or 
beset the house or other place where such person resides or 
carries on business, or happens to be, or the approach to such 
house or place. No exception was made in favor of watching 
or besetting with a view to obtaining or communicating informa- 
tion or peacefully persuading: but in 1875 (before the passing 
of the Conspiracy, etc., Act, 1875), in the case of workmen 
being charged with conspiracy to molest Mr. Graham and others 
in their business of cabinet makers, Mr. Russell Gurney, the 
Recorder of London, in effect charged the grand jury not to 
bring in a true bill, if all that the pickets had done was to 
peacefully persuade. (R. v. Hibbert, 1875, 13 Cox, C. C. 82.) 

45. Next came the Act of 1875,^ The Conspiracy and Pro- 
tection of Property Act, 38 and 39 Vic. c. 86, which repealed 
the Act of 1871. That Act is the now existing Act, and Section 
7 is in the following terms : 

^ Called by Mr. Justice Cave, " the charter of the workingman." 



72 STATISTICS OF LABOR. [Pub. Doc. 

Section vii. Every person who, with a view to compel any other 
person to abstain from doing or to do any act which such other person 
has a legal right to do or abstain from doing, wrongfully and without 
legal authority, — 

1. Uses violence to or intimidates such other person or his wife or 

children, or injures his property; or, 

2. Persistently follows such other persons about from place to 

place; or, 

3. Hides any tools, clothes, or other property owned or used by 

such other person, or deprives him of or hinders him in the 
use thereof; or, 

4. Watches or besets the house or other place where such other 

person resides, or works, or carries on business or happens to 
be, or the approach to such house or place; or, 

5. Follows such other person with two or more other persons in a 

disorderly manner in or through any street or road, 
shall, on conviction thereof by a court of summary jurisdiction, or on 
indictment as hereinafter mentioned, be liable either to pay a penalty 
not exceeding twenty pounds, or to be imprisoned for a term not ex- 
ceeding three months, with or without hard labor. 

Attending at or near the house or place where a person resides, or 
works, or carries on business, or happens to be, or the approach to 
such house or place, in order merely to obtain or communicate in- 
formation, shall not be deemed a watching or besetting within the 
meaning of this section. 

46. This, it will be observed, made it penal to watch or beset, 
etc., the house, with the qualification that attending merely to 
communicate or obtain information should not be deemed watch- 
ing or besetting. As the bill passed through Parliament the 
Government was pressed to insert words putting peaceful per- 
suasion on the same footing as communicating and obtaining 
information, but they refused on the ground that it was implied 
by the terms of the bill. After the Act had passed, a case, Reg. 
V, Bauld, 1876, 13 Cox 282, came before the court, and in the 
course thereof it was ruled that watching and besetting for any 
other purpose than that of obtaining or communicating informa- 
tion was forbidden, and therefore that watching or besetting for 
the purpose of peacefully persuading was an offence. The same 
result was come to in the decision of the authoritative case of 
Lyons v. Wilkins, 1896, 1 Ch. 811, 1899, Ch. 255. It is some- 
times represented that workmen are thus punished for merely 
peacefully persuading. But this is not so. 'No workman has ever 



No. 15.] DISPUTES AND COMBINATIONS. 73 

been punished under this Act for merely peacefully persuading. 
What he has been punished for is watching or besetting a house, 
etc., with the view of peacefully persuading — a different mat- 
ter. Before he can be convicted or punished it has to be proved 
that he watched or beset the house; and also that he did so to 
compel, though compelling may, in the case supposed, mean 
little more than persuading persons to do what without such 
persuasion they might not be willing to do. 

47. The proposal made on this matter by the trade unions 
may be taken to be embodied in Clause 1 of Mr. Whittaker's 
bill of 1905, which is in these terms : — 

'' Clause i. — It shall be lawful for any person or persons acting 
either on their own behalf or on behalf of a trade union or other asso- 
ciation of individuals, registered or unregistered, in contemplation of 
or during the continuance of any trade dispute, to attend for any of 
the following purposes at or near a house or place where a person 
resides or works, or carries on his business, or happens to be — 

(1) for the purpose of peacefully obtaining or communicating 

information ; 

(2) for the purpose of peacefully persuading any person to work 

or abstain from working." 

48. Such an enactment would go further than the mere in- 
sertion of what the Government of 1875, as above stated, under- 
stood was already done, because it is not an amplification of the 
proviso, but a positive enactment giving a right to attend. The 
proposal would, in fact, legalize the attendance of any number 
of persons for the specified purpose, although the attendance 
might be such as to constitute a nuisance, or a trespass. But 
the real objection lies deeper. The evidence on this matter laid 
before us is on this point really overwhelming, and is evidence 
which the trade unions have made no attempt to contradict. 
What it comes to is this, that watching and besetting for the 
purpose of peaceably persuading is really a contradiction in 
terms. The truth is that picketing, however conducted, when 
it consists of watching or besetting the house, etc., — and it 
is to be observed that the statute places no limit to the number 
of persons attending for the purpose only of obtaining or com- 
municating information or to the length of time during which 
such attendance may be maintained, — is always and of necessity 



74 STATISTICS OF LABOR. [Pub. Doc. 

in the nature of an annoyance to the person picketed. As such, 
it must savor of compulsion, and it cannot be doubted that it 
is because it is found to compel that trade unions systematically 
resort to it. » It is obvious how easy it must be to pass from the 
language of persuasion into that of abuse, and from words of 
abuse to threats and acts of violence. A considerable proportion 
of the cases of physical violence which occur during times of 
strike arise directly or indirectly out of picketing. At the 
same time all the witnesses admitted that the real vice of picket- 
ing consisted in illegal intimidation, that is to say, in producing 
in the mind of a person apprehension that violence would be 
used to him or his wife or family or damage be done to his 
property, and some witnesses thought that picketing by one or 
two persons could not produce any injurious effect. It must 
be remembered that, if picketing amounts to a nuisance, it 
can be restrained by injunction, and that a trade union which 
authorizes the nuisance can be made liable in a civil action. 
Moreover, the consideration that the right to strike, which, 
when not accompanied by breach of contract, tort, or crime, is 
legal, and indeed is conceded by nearly all employers to be 
within the rights of workmen, carries with it in our judgment 
as a corollary the right to persuade others to do the same. We 
therefore think that this right could be safeguarded, and at 
the same time the oppressive action of picketing struck at if 
the watching-besetting clause with its proviso were struck out, 
and instead thereof another sub-section (which would also super- 
sede sub-section 1) inserted " acts in such a manner as to cause 
a reasonable apprehension in the mind of any person that vio- 
lence will be used to him or his wife or family, or damage be 
done to his property." 

C, — The Law of Conspiracy as Affecting Trade Unions. 

49. The subject of the law of conspiracy is peculiarly in- 
tricate: and it is probably impossible to reconcile the opinions 
and dicta which have been pronounced by judges and writers of 
authority on the matter. The remarks which we shall make 
cannot be authoritative and are not intended to be exhaustive, 
but they will be sufficient, we hope, to indicate the bearing of 
the subject on the question referred to us. 



No. 15.] DISPUTES AND COMBINATIONS. 75 

50. The nature of a criminal conspiracy at common law is 
described in the following well-known passage from the opinion 
of the judges delivered by Willes, J., in Mulcahy v. Reg. 1868 
L. E. 3 H. L. 317: — 

A conspiracy consists not merely in the intention of two or more, but 
in the agreement of two or more to do an unlawful act or do a lawful 
act by unlawful means. So long as such a design rests in intention 
only it is not indictable. When two agree to carry it into effect, the 
very plot is an act in itself, and the act of each of the parties, promise 
against promise, actus contra actum, capable of bemg enforced if law- 
ful, punishable if for a criminal object, or for the use of criminal means. 

A more definite statement of the law is to be found in the 
Report of the Royal Commission of 1874, of which L. C. J. 
Cockburn, Sir Montague Smith, and Mr. Russell Gurney were 
members : — 

Conspiracy may be divided into three classes. First, where the end 
to be accomplished would be a crime in each of the conspiring parties, 
a class which offers no difficulty. Secondly, where the purpose of the 
conspiracy is lawful, but the means to be resorted to are criminal, as 
where the conspiracy is to support a cause believed to be just by per- 
jured evidence. Here, the proximate or immediate intention of the 
parties being to commit a crime, the conspiracy is to do something 
criminal, and here, agam, the case is consequently free from difficulty. 
The third and last case is, where, with a malicious design to do an 
injury, the purpose is to effect a wrong, though not such a wrong as, 
when perpetrated by a single individual, would amount to an offence 
under the criminal law. Thus, an attempt to destroy a man's credit 
and effect his ruin by spreading reports of his msolvency would be a 
wrongful act, which would entitle the party whose credit was thus 
attacked to bring an action as for a civil wrong; but it would not be an 
indictable offence. If it be asked on what principle a combination of 
several to effect the like wrongful purpose becomes an offence, the 
answer is — upon the same principle that any other civil wrong, when 
it assumes a more aggravated and formidable character, is constituted 
an offence, and becomes transferred from the domain of the civil to 
that of the criminal law. All offences, it need hardly be observed, are 
either in their nature offences against the community, or are primarily 
offences against individuals. As regards the latter class every offence 
against person or property or other individual right involves a civil 
wrong, which would have entitled the person injured to civil redress, 
were it not that, owing to the aggravated nature of the wrong, and 
the general insecurity to society which would ensue from such act if 



76 STATISTICS OF LABOR. [Pub. Doc. 

allowed to go unpunished, the State steps in and, merging the wrong 
done to the party inunediately interested in the larger wrong done to 
the community, converts the wrong done by the infraction of individual 
right into a crime, and subjects the wrong-doer to punishment, to pre- 
vent, as far as possible, the recurrence of the offence. Thus the 
dividing line between private wrongs, as entitling the party injured to 
civil remedies, and private wrongs thus converted into public wrongs, 
in other words, into offences or crimes, is to be found in the more 
aggravated and formidable character which the violation of individual 
rights under given circumstances assumes. It is upon this principle 
that the law of conspiracy, by which the violation of private right, 
which if done by one would only be the subject of a civil remedy, when 
done by several is constituted a crime, can be vindicated as necessary 
and just. It is obvious that a wrongful violation of another man's 
right committed by many assumes a far more formidable and offensive 
character than when committed by a single individual. The party 
assailed may be able by recourse to the ordinary civil remedies to 
defend himself against the attacks of one. It becomes a very different 
thing when he has to defend himself against many combined to do him 
injury. To take the case, put by way of illustration, that of false 
representations made to ruin a man's business by raising a belief of his 
insolvency. Such an attempt made by one might be met and repelled. 
It would obviously assume very different proportions and a far more 
formidable character if made by a number of persons confederated 
together for the purpose, and who should simultaneously, and in a 
variety of directions, take measures to effect the common purpose. A 
variety of other instances illustrative of the principle might be put. 
The law has, therefore, and, as it seems to us, wisely and justly estab- 
lished that a combination of persons to commit a wrongful act with a 
view to injure another shall be an offence, though the act, if done by 
one would amount to no more than a civil wrong. We see no reason 
to question the propriety of the law as thus established, nor have we 
any reason to believe that in its general application it operates other- 
wise than beneficially. Whether there are cases in which, on a correct 
view of the law, parties may be held liable on a charge of conspiracy, 
where the end is not wrongful, or the means to be used criminal, is a 
matter into which we do not think it necessary to enquire, as, if such 
be the law, which we greatly doubt, we are prepared, as we shall state 
further on, to recommend that as respects the contract of hiring and 
service, and the relation of master and servant, the law should be 
amended. 

51. Previous to 1871 the courts had in certain cases (of 
which P. V. Rowlands is an example) in applying the law of con- 
spiracy, treated, as criminal combinations, ordinary strike pro- 



No. 15.] DISPUTES AND COMBINATIONS. 77 

ceedings which did not involve the commission of anything, 
which, if done by one person, would be forbidden by either the 
-criminal or the civil law. Such proceedings, workmen repre- 
sented, ought not to be considered criminal. Parliament, accept- 
ing this view of the workmen, endeavored to meet it by the 
Criminal Law Amendment Act of 1871, but this expedient 
failed, as is shown by the Gas Stokers Case, E. v. Bunn. 

62. We refer to what we have already said upon the history 
of the repeal of the combination laws, and the enactment by 
the Legislature of specific offences summarily punishable. In 
1875 the Government of the day resolved in framing the Act of 
that year to deal with the law of conspiracy so far as it affected 
trade unions, and to apply a more drastic remedy than that 
which had failed in 1871, by declaring that a combination to 
do, or procure to be done, any act in contemplation or further- 
ance of a trade dispute between employers and workmen should 
not be indictable as a conspiracy, if such act committed by one 
person would not be a crime punishable with imprisonment. 
This policy of the Act of 1875 was explained by the responsible 
promoters of the measure in terms which are unmistakable. 
Earl Cairns, who was then Lord Chancellor, in the debate 
which took place on the Act of 1875, Conspiracy and Protection 
of Property Act, 38 and 39 Vic. c. 86, when it was in Committee 
in the House of Lords, is reported in " Hansard," Vol. 226, p. 
164, to have said: — 

The bill did make a change in the existing law, and the clause now 
under consideration was in harmony with the other parts of the meas- 
ure. Taken in connection with the following- clauses, the bill attempted 
to define what acts connected with trade disputes were criminal and 
what were not — therefore it recited all acts relating to trade disputes 
which were intended to be treated criminally, and it sets those acts out. 
On the other hand it declared by this clause that an agreement by two 
or more persons to do what would not be a crime if done by one person 
was not to be punished as a crime; but by the next clause intimidation 
and annoyance by violence were struck at, and it was declared that 
every person who, with a view to compel any other person to abstain 
from doing, or to do, any act which such other person had a legal 
right to do or to abstain from doing, should use violence or intimida- 
tion either to his person, or his wife or children, or his property, should 
be liable on conviction to a pecuniary penalty or to imprisonment. By 



78 STATISTICS OF LABOR. [Pub. Doc. 

this clause, then, intimidation was struck at, and combined action to 
carry out such intimidation would therefore be struck at. It was true 
that, under the existing law, if one man broke his contract that would 
not be a crime, while if say — fifty — broke their contract, that at 
common law might be regarded as a conspiracy. Under this bill it 
would not be a conspiracy. The principle upon which the bill was 
framed was that the offences in relation to trade disputes should be 
thoroughly known and understood, and that persons should not be 
subjected to the indirect and deluding action of the old law of con- 
spiracy. 

53. There can, therefore, be no doubt as to the evils at which 
the Act of 18Y5 was aimed. It was considered that the common 
law relating to criminal conspiracies was in many respects vague 
and uncertain, and that workmen were justified in demanding 
that the law as to their liability in connection with strikes and 
disputes should be made clear, precise, and definite. Such being 
the object of the Legislature, it was deemed expedient to enact, 
as is done in the third section, that : — 

An agreement or combination by two or more persons to do or pro- 
cure to be done any act in contemplation or furtherance of a trade 
dispute between employers and workmen shall not be indictable as a 
conspiracy if such act committed by one person would not be punishable 
as a crime. 

This enactment has made it perfectly clear in what cases 
combinations to do acts in furtherance or contemplation of trade 
disputes between employers and workmen involve criminal re- 
sponsibility. It is clear that, subject to certain exceptions 
specified in the Statute, no combination to commit any act, 
which, if done by one person, would not be an offence punish- 
able by imprisonment, can be the foundation of criminal pro- 
ceedings. 

54. The civil action of conspiracy differs in this respect from 
the criminal, that the conspiracy is not complete by mere agree- 
ment, but must result in something being done from which 
damage results in order that the action may lie. 

55. For the reasons which we gave in our treatment of 
branch A, no one was, during the discussion of the bill of 1875, 
thinking of the civil action. It is, however, evident that the 
authoritative exposition of the law in the Taff Yale case makes 
the subject of the civil action of supreme importance. 



No. 15.] DISPUTES AND COMBINATIONS. 79 

56. The importance of the subject was brought to the front 
by the decision in the Honse of Lords of the case of Quinn v. 
Leathern, L. R. 1901 A. C. 495. The facts of that case Avere as 
follows : — 

The plaintiff, Leathern, master butcher, sued the defendants, trade 
unionist officials (Craig being the president, Quinn the treasurer) for 
damages for procuring persons to break contracts and not to enter into 
contract with him; and for procuring workmen in the employment of 
such persons to leave the service of their employers and to break their 
contracts of service, with intent to injure the plaintiff and to prevent 
such persons from carrying out their contracts with the plaintiff and 
from entering mto other contracts with him; and for intimidating such 
servants and coercing them to leave the service of their employers to 
the injury of the plaintiff'; and for unlawfully conspiring together with 
others to do the acts aforesaid with intent to injure the plaintiff. The 
plaintiff was a butcher at Lisburn, about eight miles from Belfast; 
he employed non-unionists only. He had for foreman a man who had 
been with him ten years, and he himself had for twenty years been in 
the habit of supplying meat to Munce, a butcher in Belfast, to the 
value of £30 a week on the average. Munce employed unionists. The 
defendants were butchers' assistants in Lisburn and Belfast. In the 
spring of 1895, the defendants formed themselves into a trade union, 
and one of the rules was that they would not work with non-union men 
or cut up meat that came from a place where non-union men were 
employed. In July of the same year the defendants required the plain- 
tiff to dismiss his foreman. The plaintiff negotiated on behalf of his 
foreman and his men, and offered to pay all fines against them and 
asked to have them admitted to the society. The defendants rejected 
this proposal, saying that the plaintiff's men should be punished and 
should be put to walk the streets for twelve months. The plaintiff 
refused to comply with defendants' demand, thereupon the defendants 
called on some of his men to leave him, but as they were non-unionists 
the union could do no more than induce one of them to leave. This, 
however, was in breach of contract. They then demanded of Munce to 
discontinue taking meat from plaintiff, with " threat " of a strike 
against him (in the nature of a secondary strike). Munce complied, 
to the great loss of the plaintiff. The " threats " which the unionists 
sent during the negotiations were, to the plaintiff, " If you continue as 
at present our Society will be obliged to adopt extreme measures in 
your case," and to Munce : " We have endeavored to make satisfactory 
arrangements (with Leathem), but have failed, so therefore have no 
other alternative but to instruct your employees to cease work imme- 
diately Leathem's beef arrives." 

The case began in 1896, when the decision of the Court of Appeal in 
" Flood V. Jackson " had not yet been reversed on appeal (as " Allen v. 



80 STATISTICS OF LABOR. [Pub. Doc. 

Flood"), and was in force as a binding authority. The defendants did 
not call witnesses. The jury found that the defendants had " wrong- 
fully and maliciously " induced the customers and servants of the 
plaintiffs to refuse to deal with the plaintiffs, and had conspired to 
induce them so to do. Verdict accordingly was given for the plaintiffs, 
and the defendants moved for judgment to be entered in their favor 
on the ground that no actionable wrong had been shown on the evi- 
dence. The motion came on for hearing in November, 1898, after the 
adjudication of " Allen v. Flood " by the House of Lords. The Queen's 
Bench Division and the Court of Appeal unanimously (with the ex- 
ception of Palles, C.B., in the court below) upheld the verdict, holding 
that the rule laid down in " Allen v. Flood," that an act of harm, if not 
unlawful in itself, did not become unlawful because done with a bad 
motive, did not apply to the case of a combination. The ease then 
went to the House of Lords who unanimously affirmed the decision of 
the court below. The law-lords unanimously held that the terms of the 
Conspiracy, etc.. Act, Section 3, which exclude indictments for con- 
spiracy left unaffected the civil remedy for conspiracy, and they found 
that in the case before them the defendants were civilly liable as for 
conspiracy. 

57. Throughout these remarks we have assumed that it is 
not for us to discuss the status or privileges of trade unions so 
far as they rest on Parliamentary sanction. It may be a ques- 
tion whether the enactment in Section 3 of the Act of 1875, 
Conspiracy and Protection of Property Act 1875, is in truth 
correctly expressed ; whether in truth an act done hy a comhina- 
tion of persons can ever be the same as an act done by one. 
There, however, the matter stands, and it is not doubtful that 
it represents a concession to trade unions, whose chief strength 
must necessarily lie in collective action. 

58. The danger to trade unions consists not so much in the 
judgment of Quinn v. Leathem as in the possible expansion of 
the judgment by the application of the dicta of certain of the 
law-lords who took part in it. In Quinn v. Leathem there was 
the element of procuring to break contract. But to break a 
contract is to involve liability for damages, and the procuring 
to break a contract is itself a tortious act. Lumley v. Gye, 2 
E and B 216. We are aware that Lumley v. Gye has been 
much discussed, but we consider it has been authoritatively 
affirmed as good law by the recent judgment of the House of 



No. 15.] DISPUTES AND COMBINATIONS. 81 

Lords in The G-lamorgan Coal Co. (Ltd.) and others v. The 
South Wales Miners' Federation and others, 1905, A. C. 239. 
But the dicta of Quinn v. Leathern show clearly that there 
might be an action of damages based on any conspiracy to 
injure or to do harm, and it is obvious the very essence of a 
strike is in one sense injury to those against whom it is directed. 
Thus, procuring to strike might by the law of Quinn v. Leathern, 
coupled with that of Taff Yale, involve trade union funds in 
liability, even where there had been no procuring to break 
existing contracts. 

59. There is no doubt that, though the law of conspiracy is 
intricate in discussion, the existence of a criminal sanction for 
conspiracy is a valuable preservative of order, and modern times 
have shown that there are certain forms of oppression generally 
known as boycotting which can scarcely be met except by its 
aid. Whether there can truly be a civil action for conspiracy, 
on facts which fall short of criminal conspiracy, is a question 
which cannot be said to be settled. We have carefully considered 
the matter, and our view is in the negative. . . . But we 
do not think it material to discuss the question at length, be- 
cause, as we have already shown, the Legislature has thought fit 
to put those who conduct trade disputes in an exceptional posi- 
tion as regards that law. 

60. We think therefore that without attempting to touch 
the law of conspiracy generally, it would be reasonable to 
recognize that, by the Act of 1875, it was conceded that trade 
unions, who necessarily act by means of combination, should 
for the purposes of trade disputes be put in a special position. 

For the reasons already given the protection conceded was at 
that time confined to the criminal side. We think it can fairly 
be said that the civil side should be equally dealt with. 

61. The proposal of the trade unions may be taken as em- 
bodied in Clause 3 of Mr. Whittaker's bill of 1905, which is as 
follows : — 

Clause 3. An agreement or combination by two or more persons 
to do or procure to be done any act in contemplation or furtherance of 
a trade dispute shall not be ground for an action if such act, when 
committed by one person, would not be ground for an action. 



82 STATISTICS OF LABOR. [Pub. Doc. 

We think this would be better effected by an enactment to the 
following effect : — 

That an agreement or combination by two or more persons to do or 
procure to be done any act in contemplation or furtherance of a trade 
dispute shall not be the ground of a civil action unless the agreement 
or combination is indictable as a conspiracy notwithstanding the terms 
of the Conspiracy and Protection of Property Act, 1875. 

62. It is to be observed that in the above proposed amendment 
we have omitted after the words " trade dispute " the words 
" between employers and workmen " which are to be found in 
Section 3 of the Act of 18 75. Our reason for so doing is that 
in ^' Quinn v. Leathem " the House of Lords expressed their 
opinion that the third section of the Act of 1875 would in the 
case before them have afforded no exemption from criminal 
liability because the acts of the defendants were not acts within 
the terms of the statute in contemplation or furtherance of a 
trade dispute between employers and workmen. Their Lord- 
ships did not offer any definition of what are acts in contempla- 
tion or furtherance of a trade dispute between employers and 
workmen; and though the acts done by the defendants are de- 
tailed in the evidence and commented upon by the court it is 
difficult to collect which of those acts taken separately failed 
to come within the statutory description, so as to form any 
guide for future cases, where, of course, the circumstances will 
be different. It seems to us that the Act when construed in 
accordance with the decision of the House of Lords has failed 
in giving effect to the intention of Parliament in 1875. The 
Legislature at that time we cannot doubt had for their cardinal 
object to eliminate the vague and uncertain operation of the law 
of conspiracy from all disputes between employers and work- 
men arising out of strikes and similar combinations, and the 
words they used for this purpose are not ^' between employers 
and workmen in their employ," but, " between employers and 
workmen." 

Por these reasons we are also of opinion that the Act of 1875 
should be made to extend to so-called secondary strikes,^ and we 

^ Or " sympathetic " strikes in America. 



No. 15.] DISPUTES AND COMBINATIONS. 83 

state this with the greater confidence because the majority of 
those employers examined by us, whose evidence was of the 
greatest weight, agreed that there was no valid reason for draw- 
ing a distinction between secondary and other strikes. 

63. We have now finished our observations on the three 
branches into which for convenience of discussion we divided the 
subject. There remain, however, one or two topics of a general 
nature. It must always be remembered that trade unions materi- 
ally suffer from the fact that at common law they are illegal 
associations, and are only, so to speak, enfranchised so far as 
the words of the Statute go. Their present enfranchisement 
depends on the words of Sections 2 and 3 of the Trade Union 
Act of 18Y1, 34 and 35 Vic. c. 31, which are as follows: — 

Section 2. The purposes of any trade union shall not by reason 
merely that they are in restraint of trade be deemed to be unlawful so 
as to render any member of such trade union liable to criminal prose- 
cution for conspiracy or otherwise. 

Section 3. The purposes of any trade union shall not by reason 
merely that they are in restraint of trade be unlawful so as to render 
void or voidable any agreement or trust. 

We think that it might be declared by Statute positively that 
trade unions themselves are lawful associations. 

64. In the same way it was, to say the least of it, doubtful 
whether a strike is at common law per se illegal, i.e., as concerted 
action. We think that Allen v. Flood, 1898, A. C. 1, author- 
itatively showed that a strike was not illegal, and that it follows 
as a corollary that to persuade to strike, i.e., to desist from work- 
ing, apart from hreacli of contract, is not illegal. We think 
this also might be statutorily declared. We are also of opinion 
for reasons stated in an Appendix that Allen v. Flood decided 
that no action lies against a person for the act of molesting 
another in his trade, business, or profession, unless such act 
be in itself an actionable tort; and as there are several dicta 
throwing doubt on this point we think there should be a declara- 
tory enactment to that effect. 

65. A good deal of evidence was laid before us from no un- 
friendly point of view to trade unions that it would be of great 
advantage that trade unions should be able to enter into binding 



84 STATISTICS OF LABOK. [Pub. Doc. 

agreements with associations of employers, and witli their own 
members to enable them to carry out their agreements. At 
present this is impossible owing to the terms of Sec. 4 of the 
Trade Union Act of 1871. We think that facultative powers 
might be given to trade unions, either (a) to become incorporated 
subject to proper conditions, or (&) to exclude the operation of 
Sec. 4 or of some one or more of its sub-sections for the purposes 
above mentioned. 

Recommendations. 

66. Our recommendations may be summarized as follows : — 
That an Act should be passed for the following objects : — , 

(1) To declare trade unions legal associations. 

(2) To declare strikes from whatever motive or for whatever 
purposes (including sympathetic or secondary strikes), apart 
from crime or breach of contract, legal, and to make the Act 
of 1875 to extend to sympathetic or secondary strikes. 

(3) To declare that to persuade to strike, i.e.j, to desist from 
working, apart from procuring breach of contract, is not illegal. 

(4) To declare that an individual shall not be liable for 
doing any act not in itself an actionable tort only on the ground 
that it is an interference with another person's trade, business, 
or employment. 

(5) To provide for the facultative separation of the proper 
benefit funds of trade unions, such separation if effected to 
carry immunity from these funds being taken in execution. 

(6) To provide means whereby the central authorities of a 
union may protect themselves against the unauthorized and 
immediatelv disavowed acts of branch a2:ents. 

(7) To provide that facultative powers be given to trade 
unions, either (a) to become incorporated subject to proper con- 
ditions, or (h) to exclude the operation of Section 4 of the trade 
Union Act, 1871, or of some one or more of its sub-sections, so 
as to allow trade unions to enter into enforceable agreements 
with other persons and with their own members. 

(8) To alter the 7th Section of the Conspiracy and Pro- 
tection of Property Act, 1875, by repealing Sub-section 4 and 
the proviso, and in lieu thereof enacting as a new sub-section 
(which would also supersede Sub-section 1 ) : " Acts in such a 
manner as to cause a reasonable apprehension in the mind of 



No. 15.] DISPUTES AND COMBINATIONS. 85 

any person that violence will be used to him or his family, or 
damage be done to his property.'' 

(9) To enact to the effect that an agreement or combination 
by two or more persons to do or procure to be done any act in 
contemplation or furtherance of a trade dispute shall not be the 
ground of a civil action, unless the agreement or combination is 
indictable as a conspiracy notwithstanding the terms of the 
Conspiracy and Protection of Property Act, 1875. 

Memorandum by Mr. Sidney Webb. 

I have signed the report of the majority of the commission 
because I agree with all its specific recommendations as far as 
they go, though not with every phrase in the report itself. These 
recommendations appear to me well adapted to remedy the par- 
ticular defects in the law to which they apply ; and their enact- 
ment in distinct and unmistakable terms would, in my opinion, 
remedy many of the grievances of which trade unionists com- 
plain, and would effect a great improvement. 

With regard to suggested limitation of the liability of trade 
unions for the wrongful acts of their agents, I think that atten- 
tion should be drawn to the following clause, which was con- 
tained in a Government bill submitted to the New South Wales 
Legislative Council on October 1st, 1903, by the then Attorney- 
General (Hon. Bernhard Wise), entitled '^ A Bill to amend the 
law of Conspiracy and to amend the Industrial Arbitration Act, 
1901." 

ClaiLse 2. — No trade union or industrial union or association of em- 
ployers shall be liable to any suit or action, nor shall the funds of such 
union or association be in any way chargeable in respect of any act 
or word, done, spoken, or written, during or in connection with an in- 
dustrial dispute, by any agent, if it be proved that such agent acted : — 

{i) contrary to instructions bona -fide given by, or (m) without the 
knowledge of the governing body of such union or association ; and that 
the union or association has hona -fide and by all reasonable means re- 
pudiated the acts or words complained of, at the earliest opportunity 
and with reasonable publicity. 

But I cannot accept the assumption underlying the report 
that a system of organized struggles between eniployers and 
workmen, leading inevitably now and again to strikes and lock- 
outs, — though it is, from the standpoint of the community as a 



86 STATISTICS OF LABOR. [Pub. Doc. 

whole, an improvement on individual bargaining, — represents 
tbe only method, or even a desirable method, by which to settle 
the conditions of employment. A strike or a lockout — which 
is not only lawful, but under existing circumstances, as a meas- 
ure of legitimate defence against economic aggression, may be 
sometimes even laudable — necessarily involves so much dislo- 
cation of industry ; so much individual suffering; so much injury 
to third parties, and so much national loss, that it cannot, in my 
opinion, be accepted as the normal way of settling an intractable 
dispute. Moreover, from the standpoint of the community, such 
a method has the drawback that it affords no security — and 
even no presumption — ■ that the resultant conditions of em- 
ployment will be such as not to be gravely injurious to the com* 
munity as a whole: that they will not involve, for instance, on 
the one hand, the social degeneration of " sweating,'' or on the 
other the loss caused by restriction of output or of apprentice- 
ship. I cannot believe that a civilized community will per- 
manently continue to abandon the adjustment of industrial 
disputes — and incidentally the regulation of the conditions of 
life of the mass of its people — to what is, in reality, the arbitra- 
ment of private war. 

A more excellent way is, I believe, pointed out in the experi- 
mental legislation of the past decade in E'ew Zealand and 
Australia. We have, in the factory, mines, shops, and sanitary 
legislation of the United Kingdom, long adopted the principle 
of securing, by law, the socially necessary minimum, as regards 
some of the conditions of employment for certain classes of 
labor. The various industrial conciliation and arbitration laws 
of 'New Zealand and Australia carry this principle a step farther, 
so as to include all the conditions of employment and practically 
all classes of labor. Such a system appears to offer, to the general 
satisfaction of employers and employed, both a guarantee against 
conditions of employment that are demonstrably injurious to 
the community as a whole, and an effective remedy for industrial 
war. 

Kote on the Mogul Case by the Chairnian. 

There is no doubt that it has been often said that the Mogul 
case gave to employers a freedom of attack which was denied 
to workmen by Quinn v. Leathem. 



No. 15.] DISPUTES AND COMBINATIONS. 87 

The facts in the Mogul case, 23 Q. B. D. 614, and 1892, 
App., Gas., p. 25 are, as given by Mr. Askwith in his evidence, 
as follows : — 

The defendants were ship owners, and formed an association for the 
purpose of securing a monopoly of the carrying trade between Hankow 
and European ports. In pursuance thereof they offered a rebate of 5 
per cent to all shippers who should ship only with them; and their 
members were to forbid their agents, upon pain of dismissal, to act for 
the plaintiffs, who were a competing firm of ship owners. In one case 
certain agents were dismissed. Upon the plaintiffs sending ships to 
Hankow, the defendants underbid them, and by the consequent reduc- 
tion of freights, forced the plaintiffs to carry at a loss. Held unani- 
mously, by the House of Lords, that the plaintiffs had no cause of 
action. 

The acts of offering a rebate and underselling do not suggest 
any difficulty, but at first sight, doubtless, the forcing of the 
dismissal of the agents bears a strong similarity to the act of 
the forcing of the dismissal of the servants in Quinn v. Leathem, 
which act was held as indication of a conspiracy to injure. 

This fact of the dismissal of the agents does not seem to have 
attracted notice at first, for it is not noticed in either the report 
of the argument or the judgment in the Court of Appeal. So 
far, therefore, as the oft-quoted judgment of Lord Justice Bowen 
is concerned the fact must be taken as unassumed. 

But in the House of Lords the fact was relied on by counsel 
in argument, and it is noticed in the judgments. 

Lord Watson said : — 

The withdrawal of agency at first appeared to me to be a matter at- 
tended with difficulty^ but on consideration I am satisfied that it cannot 
be regarded as an illegal act. In the first place it was impossible that 
any honest man could impartially discharge his duty of finduig freights 
to parties who occupied the hostile position of the appellants and re- 
spondents; and in the second place the respondents gave the agents the 
option of continuing to act for one or other of them in circumstances 
which placed the appellant at no disadvantage. 

Lord Morris said : — 

The fifth means used, viz., the dismissal of the agents, might be ques- 
tionable according to the circumstances, but in the present case the 
agents filled an irreconcilable position in being agents for the two 
rivals, the plaintiffs and the defendants. 



88 STATISTICS OF LABOR. [Pub. Doc. 

Froin these remarks it is, I think, apparent that the dismissal 
of the agents in the Mogul case was not looked upon as on the 
facts an ultroneous attack like the withdrawal of Munce's work- 
men if he took Leathem's beef. In my judgment this view of 
the facts was right, but it would not matter if it was not so — 
the point being that on the facts held as proved, and, therefore, 
assumed in the application of the law, the case is not inconsistent 
with what the House of Lords afterwards laid down in Quinn v. 
Leathern. 

Mr. Arthur Cohen agreed, for the reason stated in the Chair- 
man's note, as well as for other reasons, that the decision of the 
House of Lords in the Mogul case was not inconsistent with the 
decision in Quinn v. Leathern. 

Meniorandum on the Civil Action of Conspiracy. 

If a person is a party to a conspiracy or combination to do 
acts causing injury to another person, and those acts are in 
themselves actionable torts, there the injured person can evi- 
dently maintain an action quite apart from conspiracy; he can 
maintain it against anyone who is a party to the conspiracy, 
and the non- joinder of the other parties to it cannot be pleaded 
either in bar or in abatement. For instance, if two or more 
persons conspire to assault, and do assault, another person, the 
latter can maintain an action for such assault against any one 
who committed the assault or who joined in and authorized it, 
and the allegation of conspiracy in the statement of claim is 
mere surplusage, except so far as it may affect the amount of 
damages to be recovered. In those cases, therefore, conspiracy 
is not the foundation of the action. Herein lies the essential 
distinction between an action and a criminal prosecution. 

In a well known passage from the opinion of the judges 
delivered by Willes, J., in Mulcahy v. Eeg. 1868, L. R., 3 H. 
L. 31Y, the character of a criminal conspiracy is described in 
the following terms : — 

A conspiracy consists not merely in the intention of two or more, but 
in the agreement of two or more to do an milawf ul act or do a lawful 
act by unlawful means. So long as such a design rests in intention 
only it is not indictable. When two agree to carry it into effect, the 



No. 15.] DISPUTES AND COMBINATIONS. 89 

very plot is an act in itself, and the act of each of the parties, promise 
Against promise, actus contra actum, capable of being enforced if law- 
ful, punishable if for a criminal object, or for the use of criminal means. 

In the case of a civil action tlie position is entirely different, 
for sucli an action cannot be maintained merely because the 
combination or conspiracy has been formed; it is necessarily a 
condition precedent to the right of action that the tortious act 
itself should have been committed and that the actual damage 
or injury should have accrued. 

There may be, hov^ever, cases where the combination or con- 
spiracy to injure is itself a misdemeanor, although the acts 
agreed to be done are neither actionable torts nor criminal 
offences; for instance, those in which there is a conspiracy to 
injure such as is not protected by the provisions of the Con- 
spiracy and Protection of Property Act 18Y5. 

In those cases a civil action can be maintained by the injured 
person. Thus Coleridge, L. C. J., says in the Mogul case at 
page 549 of 21, Q. B. D. 

If the combination is unlawful, then the parties to it commit a mis- 
demeanor, and are offenders agamst the State; and if, as the result of 
such unlawful combination and misdemeanor, a private person receives 
a private injury, that gives such person a right of private action. 

Again in the same case in the Court of Appeal, Pry, L. J., 
says at page 624 of 23, Q. B. D. : — 

I cannot doubt that whenever persons enter into an agreement which 
constitutes at law an indictable conspiracy, and that agreement is car- 
ried into execution by the conspirators by means of an unlawful act or 
acts which produce private injury to some person, that person has a 
cause of action against the conspirators. 

In such cases it may be said that the conspiracy, which is the 
misdemeanor, is the ground of the civil action. These, how- 
ever, are the only cases in which it can, in propriety, be said 
that a civil action can be maintained for conspiracy. There is 
abundant authority in proof of this proposition. The principal 
authorities are the judgment of Lord Holt in Saville v. Roberts, 
I. Lord Raymond, 374, the notes to Skinner v. Gunton, reported 



90 STATISTICS OF LABOR. [Pub. Doc. 

in I. William Saunders, 269, the judgment of Coleridge, L. C. J., 
in the Mogul case, 21, Q. B. D., 547, and the cases therein 
cited by his Lordship, also the judgments in the same case in 
the Court of Appeal, and in the House of Lords in 23, Q. B. 
D., 598 and 1892, A. C. 26, finally the judgments in the 
Scottish Co-operative Society v. the Glasgow Fleshers Associa- 
tion, 35 Scotch L. B., 645, and in Kearney v. Lloyd, 26 Jr., L. 
B. 268, and the judgment of Lord Esher in Salaman v. Warner, 
7 Times Law Beports p. 485. 

It will be enough to cite passages from one or two of these 
judgments. In Kearney v. Lloyd, Palles, C. B. (p. 280), 
says : — 

If anything is well settled in law, it is that in cases of this descrip- 
tion {i.e., so-called actions for conspiracy) in which the old writ of 
conspiracy did not lie, the gist of the action is not the conspiracy itself, 
but the wrongful acts done in pursuance thereof. The cause of action 
must exist, although the allegation of conspiracy he struck out. 

Again, in the Mogul case, which was an action for conspiracy. 
Lord Bramwell, in delivering his opinion in the House of 
Lords, said it was not enough for the plaintiffs to make out 
that the agreement was illegal, that is, not enforceable by law. 
To maintain their action on this ground (i.e., conspiracy) they 
must make out that it was an offence^, a crime, a misdemeanor. 

In the same case the Lord Chancellor said (p. 40 of 1892, 
A. C.): — 

I ask myself whether, if the indictment had set out the facts using 
the ambiguous language to which I have referred in the statement of 
claim, it would have disclosed an indictable offence. 

It is difficult to see how this question could be material except 
upon the assumption that the civil action for conspiracy, upon 
which the statement of claim was founded, was not maintain- 
able unless the conspiracy was criminal. 

Again, in Salaman v. Warner, a case unconnected with trade 
disputes, and involving the general common law of conspiracy. 
Lord Esher says, at p. 484 of The Times Law Beports : — 

It is not true to say that a civil action could be brought for a con- 
spiracy. If persons conspired to do an illegal thing, or to do a legal 



No. 15.] DISPUTES AND COMBINATIONS. 91 

thing in an illegal way, they are liable to an indictment and not to an 
action. They are only liable to an action if they conspired to do some- 
thing against the rights of the plaintiffs, and have effected their pur- 
pose and committed a breach of those rights. The plaintiff, therefore, 
must show that the conspiracy was to injure his rights, and that those 
rights had been injured. He has, in fact, to carry his case as far as if 
there were no conspiracy at all. The fact of there having been a con- 
spiracy did not increase his right of action in the least, though it did 
not diminish it. 

Finally, there is on this point the Avell-known authoritative 
statement in the note to Skinner v. Gunton, I. William Saun- 
ders, p. 229 b. (4), 230: — 

A writ of conspiracy, properly so called, did not lie at common law 
in any case, but where the conspiracy was to indict the plaintiff either 
of treason or felony, and he had been acquitted of the indictment by 
verdict, and such writ could only be brought against two at least. All 
the cases of conspiracy, called in the old books writs of conspiracy, are 
in truth nothing else but actions on the case, and not properly writs of 
conspiracy, though in most, if not all of them, it was usual to insert 
the words per conspirationem inter eos hdbitam, and these actions it 
was always held might be brought against one person only. Those 
words inserted in the writ or declaration do not convert the action into 
a formed action of conspiracy, but it is nevertheless an action upon the 
case, and those words are mere surplusage intended as matter of ag- 
gravation, and therefore not necessary to be proved to support the 
action. 

Such are the numerous authorities in support of the view I 
am contending for ; but there is one case that has been frequently 
cited in support of the opposite view. It is Gregory v. The 
Duke of Brunswick, and another 6 M. & G., 205 and 953, also 
6 Scott, N. K., 807. 

This case, therefore, requires to he carefully examined. The 
declaration stated in effect that the defendants, maliciously 
intending to injure and aggrieve the plaintiff, and to oppress, 
impoverish, and ruin him, wickedly and maliciously conspired 
together to prevent the plaintiff from performing in the char- 
acter of Hamlet, and in pursuance of the said conspiracy hired 
a number of persons to hoot and hiss him, and to make a great 
uproar and riot at and against the plaintiff, and thereby com- 
pelled the plaintiff to discontinue acting, and in consequence 
the plaintiff sustained damage. 



92 STATISTICS OF LABOE. [Pub. Doc. 

The defendants pleaded a plea of justification, as to so much 
of the grievances as related to the hooting, hissing, and malcing 
a great uproar at and against the plaintiff. 

To this plea there was a special demurrer. 

The counsel for the plaintiff in the course of his argument 
cited a note of the Reporter to the case of Clifford v. Brandon, 
2 Camp. 372, which stated that Macklin, the comedian, indicted 
several persons for a conspiracy to ruin him in his profession, 
that they were tried before Lord Mansfield, and it being proved 
that they had entered into a plot to hiss him as often as he 
appeared on the stage, they were found guilty under his Lord- 
ship's direction. On this note being cited, Maule, J., said: 
" This is very like the present case." 

In other words, the declaration set forth a criminal con- 
spiracy. In fact, it is evident that a combination to create 
a riot in a theatre or in any other place is a combination to 
commit a misdemeanor, and therefore a criminal conspiracy. 

Tindal, C. J., in delivering judgment against the validity of 
the plea, said : — 

Every plea which is not in denial of the charge must be in confession 
and avoidance of the whole or some part of the declaration. Here the 
defendants single out an overt act of the conspiracy and attempt to 
justify it. The charge of conspiracy and some of the overt acts remain 
unanswered. 

The case afterwards came on for trial before the Chief Justice. 
The plaintiff rested his case entirely on the conspiracy. The 
Chief Justice left it to the Jury to say whether what took 
place in the theatre was the result of a preconcerted arrangement 
between the defendants and other persons in the theatre. 

The jury found for the defendants. 

The plaintiff moved for a new trial on the ground of mis- 
direction, the misdirection being that the Lord Chief Justice 
omitted to tell the Jury that either of the defendants might be 
found guilty, although the other were acquitted, and told them 
that unless there was a conspiracy beween the defendants they 
ought to find for the defendants. 

The report of the case on this point is at p. 953 of 6 M. 
&G. 



No. 15.] DISPUTES AND COMBINATIONS. 93 

The counsel for the plaintiff argued that there were many- 
cases showing a civil action for conspiracy was in reality an 
action of tort, and would therefore lie, though only one person 
was guilty. 

It was held by the Court (p. 958-959) that, as the plaintiffs 
counsel, although he considered the action was capable of being 
sustained against one of the defendants alone, yet thought it 
more for the interest of his client not to advert before the Jury 
to that view of the case, but on the contrary to make out a case 
of conspiracy against both the defendants, he was not entitled 
to a new trial on the ground that the Lord Chief Justice had 
not made out a case for the plaintiff which his counsel had 
purposely declined to make. 

This part of the judgment was as follows : — 

It might be true in point of law that on the declaration as framed, 
one defendant might be convicted, although the other was acquitted, 
but, whether, as a matter of fact, the plaintiff was, under the circum- 
stances, entitled to a verdict against one of the defendants alone, was a 
very different question. It was to be borne in mind that the act of 
hissing in a public theatre is prima facie a lawful act, and even if it 
should be conceded that such an act, though done without concert with 
others, if done from a malicious motive might furnish a ground of 
action, yet it would be very difficult to infer malice from isolated acts 
of one person unconcerted with others. 

When the plaintiff thought proper to rest his case wholly on 
proof of conspiracy the judge (as the Court proceeded to say) 
was well warranted in treating the case as one in which unless 
the conspiracy was established, there was no ground for saying 
that the plaintiff was entitled to a verdict. 

I submit, with great deference to those who have expressed 
a contrary opinion, that a careful examination of the judgments 
in Gregory v. The Duke of Brunswick shows that the case is 
no authority for the proposition that an action can be maintained 
for a conspiracy where the conspiracy is not a misdemeanor. 
As before observed, the Declaration alleged amongst other 
things a combination to create a riot in a theatre, which is in 
itself a combination to commit a misdemeanor. Moreover, if 
this be not the true view of the Declaration, it undoubtedly 
alleged a conspiracy to ruin the plaintiff in his profession by 



94 STATISTICS OF LABOR. [Pub. Doc. 

hissing him off the stage, and this was, whether rightly or 
wrongly, assumed, in accordance with a ruling of Lord Mans- 
field, to be a criminal conspiracy. 

Finally, even if Gregory v. Duke of Brunswick did, as I 
venture to deny, contravene the proposition for which I am 
contending, that case which was decided many years ago would 
be inconsistent with the numerous authorities cited at the be- 
ginning of this paper. 

There are two other cases which have been cited to show 
that an action can be maintained for a conspiracy which is 
not a criminal conspiracy ; namely, R. v. Parnell, 14 Cox C. C. 
508, and Barber v. Lesiter, 7 C. B. K S., 175. 

As regards the former case, it was an action for a criminal 
conspiracy, and has therefore nothing to do with the question 
now under consideration. As regards the other case, Barber v. 
Lesiter, it will be found on a careful examination that the decla- 
ration would at law have been equally good if all the statements 
about conspiracy were struck out, and that the only point 
actually decided was that it appeared on the face of the declara- 
tion that the damages were too remote. 

For all these reasons I submit that at common law a com- 
bination to do any acts cannot be made the subject of a civil 
action, unless such acts would, apart from the conspiracy, give 
a right of action, or unless the combination be a criminal con- 
spiracy. In short, conspiracy cannot be the foundation of a civil 
action unless it be a criminal conspiracy. 

If this view be correct, then the decision in Quinn v. Leathem 
that the Act of 18Y5 did not affect any civil liability which 
existed previously, although it may be the result of a proper 
construction of the statute, would manifestly introduce an 
anomaly into our law. It has been seen that the question 
whether a civil action of conspiracy is maintainable is nfaterial 
only in those cases where the act in itself is not a tort and 
would not give a right of action. I*^ow it is exactly in those 
cases that the action of the common law relating to criminal 
conspiracy is, to use the language of Earl Cairns, '' indirect and 
deluding,'' and it is for this reason that the legislature passed 
the Act of 1875 with a view to prevent its application to dis- 
putes between workmen and their employees. It is for the 



No. 15.] DISPUTES AND COMBINATIONS. 95 

very same reason equally important that it should he excluded 
from civil liability in disputes between employers and work- 
men. 

Finally, I would observe that nothing which I have said 
affects the question of political boycotting, for nothing that I 
have urged impugns in the slightest degree or is intended to 
throw any doubt whatever on the proposition that, in all cases 
where boycotting or any other act or agreement intended to 
cause injury is a misdemeanor or criminal offence, a civil action 
can be maintained by the injured person. 

Memorandum on "Allen v. Flood,'* 1898. 

It has been in effect recommended in our Report that a com- 
bination of two or more persons to do or procure to be done 
any act in contemplation or furtherance of a trade dispute 
between employers and workmen shall not be ground for an 
action, if such act, when committed by one person, would not 
be ground for an action. Moreover, it is enacted by the Con- 
spiracy and Protection of Property Act 18Y5, that a similar 
combination shall not be indictable as a conspiracy, if such act 
committed by one person would not be punishable as a crime. 
It follows that the only remaining subject to be considered is 
that of non-criminal torts committed by one individual. In 
connection with this subject, there is, since the unanimous con- 
firmation of Lumley v. Gye in the House of Lords, only one 
legal question of any importance or difficulty. It is this: Is a 
person liable for doing any act which, though not in itself an 
actionable tort, amounts to an interference with or molestation 
of another person in his trade, business or employment ? 

We propose to show that since the decision of Allen v. Flood, 
and also independently of that decision and on general principles 
of law, this question must be answered in the negative. 

The facts which gave rise to the case of Allen v. Flood are 
for the present purpose sufficiently stated in the head note which 
is as follows : 

The respondents were shipwrights employed for the job on the 
repairs to the woodwork of a ship, but were liable to be discharged at 
any time. Some ironworkers who were employed on the ironwork of 
the ship objected to the respondents being employed, on the ground that 



96 STATISTICS OF LABOK. [Pub. Doc. 

respondents had previously worked at ironwork on a ship for another 
firm, the practice of shipwrights working on iron being resisted by the 
trade union of which the ironworkers were members. The appellant, 
who was a delegate of the union, was sent for by the ironworkers and 
informed that they intended to leave off working. The appellant in- 
formed the employers that unless the respondents were discharged, all 
the ironworkers would be called out or knock off work (it was doubtful 
which expression was used), that the employers had no option, that the 
ironmen were doing their best to put an end to the practice of ship- 
wrights doing ironwork, and that wherever the respondents were em- 
ployed the ironmen would cease work. There was evidence that this 
was done to punish the respondents for what they had done in the past. 
The employers, in fear of this threat being carried out which (as they 
knew) would have stopped their business, discharged the respondents 
and refused to employ them again. In the ordinary course the re- 
spondents' employment would have continued. The respondents hav- 
ing brought an action against the appellant the jury found that he had 
maliciously induced the employers to discharge the respondents and not 
to engage them, and gave the respondents a verdict for damages. 

The statement of claim contained, amongst other counts, one 
charging conspiracy, but the learned judge who tried the case 
ruled that there was no evidence to support that charge, and no 
objection was taken to this ruling. Therefore all that was said 
in the judgments in Allen v. Flood about conspiracy and about 
Temperton v, Russell and other cases turning on conspiracy 
were entirely immaterial to the decision. There were also 
counts charging illegal intimidation, coercion and threats, and 
also one alleging that the defendants maliciously and wrong- 
fully induced the Glengall Company to break their contracts 
with the plaintiffs ; but as regards those two counts the learned 
Judge who tried the case ruled that there was no evidence to 
support these charges (see 1898 A. C. p. 3). 

The only count on which the plaintiffs were left to rely, and 
the only one on which their counsel asked the judge to leave 
questions to the jury was one alleging that — 

The defendants maliciously and wrongfully and with intent to injure 
the plaintiffs procured the Glengall Company to discharge them and 
not to enter into new contracts with them. 

Thus, Lord Macnaghten, at p. 148, sums up in the following 
clear and terse language the character of the allegations in the 
statement of claim and the evidence in support of them : — 



No. 15.] DISPUTES AND COMBINATIONS. 97 

In the statement of claim there were serious allegations for which, as 
it turned out, there was no foundation whatever in fact. It was alleged 
that Allen and his co-defendants had induced the Company to break 
contracts with the plaintiffs. That was a mistake: there was no con- 
tract to break. It was alleged that Allen and his co-defendants had 
conspired against the plaintiffs. That was a mistake too; there was 
not, as the learned judge said, " a shred of evidence of any conspiracy 
at all." Then there was a charge of intimidation and coercion. That 
charge vanished too. The only reference the learned judge made to it 
was to say : " There is no evidence here, of course, of anything amount- 
ing to intimidation or coercion in any legal sense of the term." The 
case as launched broke down. 

On the argument in the House of Lords the learned Counsel 
for the plaintiffs contended (see p. 8 of 1898 A. C.) first, that 
the defendants obstructed and interfered with the plaintiffs 
trade and employment and means of livelihood and that this 
was an unlawful act, and secondly, that if it were lawful it 
Avould be made unlawful, if done from a desire to punish the 
plaintiffs from any motive whicb imported malice. 

As regards the second contention which, indeed, was incon- 
sistent with the judgment of the Court of Exchequer Chamber 
in Stevenson v. Newnham, 13 C. B. 285, it was distinctly over- 
ruled by the House of Lords in Allen v. Flood. Lord Lindley 
even says in the following passage from his judgment in Quinn 
V. Leathem, that this was the only important point decided in 
that case : — 

This decision, as I understand it, establishes two propositions: one a 
far reaching and extremely important proposition of law, and the 
other a comparatively unimportant proposition of mixed law and fact, 
useful as a guide, but of a very different character from the first. 
The first and important proposition is that an act otherwise lawful, 
although harmful, does not become actionable by being done maliciously 
in the sense of proceeding from a bad motive, and with intent to annoy 
or harm another. This is a legal doctrine, not new or laid down for 
the first time in Allen v. Flood; it had been gaining ground for some 
time, but it was never before so fully and authoritatively expounded as 
in that case. 

The same view of the decision in Allen v. Flood was taken 
by Lord Brampton in Quinn v. Leathem, and in fact since 
the decision in the former case no one has ever expressed any 



98 STATISTICS OF LABOR. [Pub. Doc. 

doubt that the law on this point is correctly laid down in the 
following clear and powerful passage from the judgment of 
Lord Watson at p. 92 : — 

Although the rule may be otherwise with regard to crimes, the law 
of England does not, according to my apprehension, take into account 
motiv6 as constituting an element of civil wrong. Any invasion of the 
civil rights of another person is in itself a legal wrong, carrying with it 
liability to repair its necessary or natural consequences, in so far as 
these are injurious to the person whose right is mfringed, whether the 
motive which prompted it be good, bad, or indifferent. But the exist- 
ence of a bad motive, ia the case of an act which is not in itself illegal, 
will not convert that act into a civil wrong for which reparation is due. 
A wrongful act, done knowingly and with a view to its injurious conse- 
quences, may, in the sense of law, be malicious; but such malice derives 
its essential character from the circumstances that the act done con- 
stitutes a violation of the law. There is a class of cases which have 
sometimes been referred to as evidencing that a bad motive may be an 
element in the composition of civil wrong ; but in these cases the wrong 
must have its root in an act which the law generally regards as illegal, 
but excuses its perpetration in certain exceptional circumstances from 
considerations of public policy. These are well known as cases of 
privilege, in wliich the protection which the law gives to an individual 
who is within the scope of these considerations consists in this — that 
he may with immunity commit an act which is a legal wrong and but 
for his privilege would afford a good cause of action against him, all 
that is required in order to raise the privilege and entitle him to pro- 
tection being that he shall act honestly in the discharge of some duty 
which the law recognizes, and shall not be prompted by a desire to 
injure the person who is affected by his act. Accordingly, in a suit 
brought by that person, it is usual for him to allege and necessary for 
him to prove an intent to injure in order to destroy the privilege of the 
defendant. But none of these cases tend to establish that an act which 
does not amount to a legal wrong, and therefore needs no protection, 
can have privilege attached to it; and still less that an act in itself 
lawful is converted into a legal wrong if it was done from a bad 
motive. 

The second point strenuously contended for by the plaintiff's 
counsel was, that to molest a person in his business or employ- 
ment without reasonable cause or justification was an actionable 
tort. For this purpose they cited the old cases of Keeble v. 
Hickeringill 11, East 574n; and Carrington v. Taylor 11, AVast, 
571, and the judgments of the Court of Appeal in Bowen v. 



l^o. 15.] DISPUTES AND COMBINATIONS. 99 

Hall, 6 Q. B. D. 333, and they further strongly relied on a 
passage in Lord Justice Bowen's judgment in the Mogul case, 
in which, after explaining that there can be no actionable tort 
without the violation of a legal right, his Lordship proceeded 
as follows : — . 

No man, whether trader or not, can, however, justify damaging an- 
other in his commercial business by fraud or misrepresentation. In- 
timidation, obstruction, and molestation are forbidden; so is the inten- 
tional procurement of a violation of individual rights, contractual or 
other, assuming always that there is no just cause for it. 

As regards Keeble v. Hickeringill, Carrington v. Taylor, and 
Bowen v. Hall, I venture to assert that those cases were dis- 
tinctly overruled by the majority of the Lords, if or so far as 
they decided that to obstruct a person in his trade by any act 
not in itseK unlawful was an actionable tort. The correctness 
of this assertion can, of course, be tested in no other way than 
by a careful perusal of the judgments of the majority of the 
Lords who took part in the decision. It will be sufficient to 
cite the following passages from the opinions delivered by the 
majority of the Lords. 

At page 101 Lord Watson says : — 

In Keeble v. Hickeringill (1) the plamtiff sued for the disturbance 
of a decoy upon his property, which he used for the purpose of cap- 
turing wild fowl and sending them to market. The defendant, who 
was an adjoining proprietor, had fired guns upon his own land, not 
with the view of killing game or wild fowl, but with the sole object of 
frightening the birds, and either driving them out of his neighbor's 
decoy pond or preventing them from entering it. The act complained 
of was, in substance, the making of a noise so close to the lands of the 
plaintiff as to be a nuisance to him. Upon that aspect of the case I 
do not find it necessary to express any opinion as to the conduct of 
the defendant; but this much is clear, that no proprietor has an abso- 
lute right to create noises upon his own land, because any right which 
the law gives him is qualified by the condition that it must not be exer- 
cised to the nuisance of his neighbors or of the public. If he violates 
that condition he commits a legal wrong, and if he does so intentionally 
he is guilty of a malicious wrong, in its strict legal sense. Holt, C.J., 
who delivered the opinion of his Court, treated the case as one of mter- 
ference with the plaintiff's trade, consisting in the capture and sale of 
wild fowl. He distinguishes it from the case of invading a franchise, 



100 STATISTICS OF LABOR. [Pub. Doc. 

which, I apprehend, would in itself 'amount to a legal wrong, and thus 
states the law applicable to it : " Where a violent or malicious act is 
done to a man^s occupation, profession, or way of getting a livelihood, 
there an action lies in all cases." I see no reason to doubt that by a 
" violent act " the learned judge had in view an act of violence done in 
such circumstances as to make it amount to a legal wrong; and I see 
as little reason why, in speaking of a " malicious act," he should not be 
understood as using the word " malicious " in its proper legal sense, 
and as referring to other wrongs, not accompanied by violence, but done 
intentionally, and, therefore, in the eye of the law, maliciously. The 
object of an act, that is, the results which will necessarily or naturally 
follow from the circumstances in which it is committed, may give it a 
wrongful character, but it ought not to be confounded with the motive 
of the actor. To discharge a loaded gun is, in many circumstances, a 
perfectly harmless proceeding; to fire it on the highway, in front of a 
restive horse, might be a very different matter. 

The learned Chief Justice proceeds to give various illustrations of the 
general rule which he had formulated. He first notices a case in which 
it had been held that a schoolmaster had no cause of action against a 
defendant who had attracted his pupils and injured his school by set- 
ting up a rival establishment, a proceeding which was obviously in the 
ordinary course of competition, and then adds : " But suppose Mr. 
Hickeringill should lie in the way with his guns, and fright the boys 
from going to school, and their parents would not let them go thither; 
sure that schoolmaster might have an action for the loss of his scholars." 
From that observation I see no reason to differ, because, in my opinion, 
frightening a child with a gun so that it cannot get to school is in itself 
a violent and unlawful act, directed both against the child and its 
schoolmaster. The learned judge then refers to three instances in 
which the defendant would be liable in an action upon the case: (1) 
where he obstructs a person in charge of a horse, who is taking it to 
a market for sale, and prevents his reaching the market, thereby de- 
priving the market owner of his dues; (2) where, to the detriment of a 
proprietor, he by threats frightens away his tenants-at-will ; and (3) 
when he beats a servant, and so hinders him from taking his master's 
tolls. It must be observed that, apart from any question of motive, 
all these cases involve the use of means in themselves illegal — obstruc- 
tion, coercion by means of threats, and personal assault. 

But assuming, what to my mind is by no means clear, that Keeble v. 
Hickeringill (1) was meant to decide that an evil motive will render 
unlawful an act which otherwise would be lawful, it is necessary to 
consider how far that anomalous principle has been recognized in sub- 
sequent decisions. Laying aside the recent decisions which are under 
review in this appeal, only one case has been cited to us in which the 
Court professed that they were guided by the reasoning of Holt, C.J. 
That instance is to be found in Carrington v. Taylor (1), a decision 



No. 15.] DISPUTES AND COMBINATIONS. 101 

which I venture to think that no English Court would at this day care 
to repeat. The facts of the case resembled those which occurred in 
Keeble v. Hickeringill (2) in this single respect, that the plaintiff was 
the owner of a decoy for wild fowl. The defendant was the owner of 
a boat in which he rowed along the coast and earned a livelihood by 
shooting wild fowl for the market, which he was lawfully entitled to do. 
But some of the shots fired by him in the pursuit of that occupation 
had the effect of scaring birds which otherwise would or might have 
entered the plaintiff's decoy; and, in respect of that disturbance, he 
was held liable in damages to the plaintiff. Whatever construction 
might be put upon the judgment of Holt, C.J., it does not appear to 
me to contain a single expression which would justify that result. I 
am not surprised to find that an eminent judge, with whose opinion 
as a whole I am unable to concur, has had the courage to express his 
dissent from the judgment in Carrington v. Taylor (1), as he failed to 
see what wrong the defendant in that case had done. To my mind the 
case is of* considerable importance, because it shows that in the year 
1809 the Court of Queen's Bench did not regard Keeble v. Hickeringill 
(2) as establishing the doctrine that a lawful act, done with intent to 
injure, will afford a cause of action. In the case before them there 
was no allegation and no evidence of any intent to injure the plain- 
tiff's decoy. The sole motive of the defendant in firing his gun was to 
earn his livelihood by killing wild fowl for the market. I cannot avoid 
the conclusion that the learned judges accepted Keeble v. Hickeringill 

(2) as an authority to that effect that, apart from any question of 
motive, the disturbance of a lawful decoy is an illegal invasion of the 
private right of its proprietor. 

A variety of well-lino wn cases, including even Lumley v. Gye (1), 
were relied on by the respondents as showing that the so-called principle 
of Keeble v. Hickeringill (2) has been from time to time applied by the 
English Courts since the date of that judgment. Except in the case 
of Carrington v. Taylor (3), which I have already noticed, I have been 
unable to discover in these authorities, which I do not consider it nec- 
essary to examine in detail, any trace of the doctrine for which the 
respondents contend until recent years, when it is first firmly fore- 
shadowed in a dictum which occurs in Bowen v. Hall (4), and is subse- 
quently developed in Temperton v. Russell (5) and in the present case. 
The authorities antecedent to Bowen v. Hall (4), as well as that de- 
cision itself, are all cases belonging to one or other of these three 
classes: (1) cases of privilege, where the perpetrator of an act which 
per se constituted a legal wrong was protected from its usual conse- 
quences in the event of its being proved that he was actuated by an 
honest desire to fulfil a public or private duty; (2) cases in which the 
act complained of was in itself a plain violation of private right; and 

(3) cases in which an act detrimental to others, but affording no remedy 
against the immediate actor, had been procured by illegal means. 



102 STATISTICS OF LABOK. [Pub. Doc. 

At page 132 Lord Herschell says: — 

It was contended that the defendant by the course he took had inter- 
fered with the plaintiffs in their trade or calling, and that this of itself 
was an actionable wrong. In support of this very broad proposition 
reliance was mainly placed on the case of Keeble v. Hickeringill (1). 
The declaration charged the defendant with firing a gun with design to 
damnify the plaintiff, and frighten the wild fowl from his decoy. In 
one report (2) it is stated that the plaintiff was lord of a manor, and 
had a decoy, and the plamtiff had also made a decoy upon his own 
ground, which was next adjoining the defendant's ground, and there 
the plaintiff had decoy and other ducks, of which he made profit. It 
was held that the action lay. In another report (3) this observation 
is attributed to Lord Holt : " Suppose defendant had shot in his own 
ground, if he had occasion to shoot it would have been one thing, but 
to shoot on purpose to damage the plaintiff is another thing, and a 
wrong." In another report (1) Lord Holt is reported as saying: 
" The action lies, for, first, using or making a decoy is lawful; sec- 
ondly, this employment of his gTound for that use is profitable to the 
plaintiff, as is the skill and management of that employment." It is 
argued that this decision rests upon the principle that intentional inter- 
ference with the trade of another is wrongful. If it was intended by 
the decision to draw a distinction between firing by the defendant on 
his own land when the decoy was kept by the plaintiff for purposes of 
trade profit, and doing the same act when the decoy was kept for pur- 
poses of pleasure only, I can see no ground for such a distinction. The 
defendant in firing upon his own land in such a way as to frighten the 
birds from the plaintiff's land, was either acting within his own rights 
or not. If he was not, he would surely be liable, whether the plaintiff 
was using his land for pleasure or profit. If he was within his rights 
he would not be liable in either case, and I do not see how his rights 
could depend on the circumstances that the plaintiff traded in ducks 
and did not merely use his decoy for purposes of sport, or that he sold 
them, and did not merely use them for consumption by his household. 
I cannot think that the right of action depended on the circumstances 
that the plaintiff traded in ducks, or that there would have been no 
right of action, all other circumstances being the same, if he had not 
done so. The case may be supported, and the observation of Lord 
Holt, which has been quoted, explained by the circumstance that if the 
defendant merely fired on his own land in the ordinary use of it, his 
neighbor could make no complaint, whilst, if he was not firing for any 
legitimate purpose connected with the ordinary use of land, he might 
be held to commit a nuisance. In this view of it Keeble v. Hickeringill 
(1) has, of course, no bearing on the present case. 

It is, however, treated in their opinions by the majority of the 
learned judges as establishing the wide and far-reaching proposition 



No. 15.] DISPUTES AND COMBINATIONS. 103 

that every man has a right to pursue his trade or calling without mo- 
lestation or obstruction, and that anyone who by any act, though it be 
not otherwise unlawful, molests or obstructs him is guilty of a wrong 
unless he can show lawful justification or excuse for so doing. 

The case of Keeble v. Hickeringill (1) was decided about two cen- 
turies ago, but I cannot find that it has ever been treated, unless it be 
quite recentty, as establishing the broad general proposition alleged. 
No such proposition is to be found stated, so far as I am aware, as the 
ground of any decision, or in any standard text-book of the English 
law. In Smith's Leading Cases, which were selected, and the notes on 
which were written by one of the most eminent lawyers of his day, the 
case of Keeble v. Hickeringill (1) is not even referred to. And the first 
editors of the work, after Mr. J. W. Smith's death, Willes and Keating, 
J.J., lawyers on whose eminence it is unnecessary to dilate, equally 
passed it by without notice. If the view taken by the majority of the 
learned judges whose opinions were given at the bar be correct, Keeble 
V. Hickeringill (1) ought to have been itself treated as a leading case. 

It has not, as I believe, been an authority on which subsequent de- 
cisions have been based, except in cases relating to the disturbance of 
decoys of wild birds. It is, nevertheless, suggested by the learned 
judges that it embodies the principle on which many subsequent cases 
have been decided, though it was not referred to, and the judges who 
pronounced the judgments were apparently unconscious of the authority 
they are said to have followed. 

It is remarkable that amongst these cases are Lumley v. Gye (2) and 
Bowen v. Hall (3), which I have already discussed. They are said by 
several of the judges to rest on the principle established in Keeble v. 
Hickeringill (1). Some of the judges, indeed, criticise adversely the 
grounds upon which these cases were decided, and intimate that they 
can only be supported on the ground taken by Lord Holt in Keeble v. 
Hickeringill (1). That case, however, was not even cited by the comisel 
who argued Lumley v. Gye (2) or Bowen v. Hall (3), or by any of the 
judges who decided them. If it establishes the proposition contended 
for, it is Tistonishing that those very learned and distinguished judges 
were unaware of any such legal proposition, and instead of taking this 
short cut to their decision based it upon elaborate reasoning entirely 
unconnected with it. 

Great reliance was placed by the respondents on certain dicta of 
Holt, C.J., in Keeble v. Hickeringill (1). That learned judge is re- 
ported to have said that if a violent or malicious act is done to a man^s 
occupation, .profession, or way of getting a livelihood, an action lies 
in all cases. And he gives the following illustrations : " If H. should 
lie in the way with guns and fright boys from going to school, and 
their parents would not let them go thither, that schoolmaster would 
have an action for loss of his scholars. A man hath a market to which 
he hath toll of horses sold, a man is bringing his horse to market to 



104 STATISTICS OF LABOR. [Pub. Doc. 

sell, a stranger hinders and obstructs him from going to the market, 
an action lies, because it imports damage. Again, an action on the case 
lies against one that by threats frightens away his tenants at will." 
In all these cases I think the Chief Justice was referring to acts in 
themselves wrongful. Firing guns in such a manner as to terrify per- 
sons lawfully passing along the highway would, I take it, be an of- 
fence. And the other illustrations given import, I think that the ob- 
struction and frightening were of such a character as to be unlawful, 
quite independently of the motives which led to them. 

The case of Carrington v. Taylor (2) was also relied on by the re- 
spondents. It is, I believe, the only case which has been expressly 
based on Keeble v. Hickeringill (1). The plaintiff there possessed an 
ancient decoy, and the defendant sought his livelihood by shooting wild 
fowl from a boat on the water, for which boat, with small arms, he had 
a license from the Admiralty for fishing and coasting along the shores 
of Essex. The decoy was near a salt creek where the tide ebbs and 
flows. The only proof of disturbance of the decoy by the defendant 
was that, being in his boat shooting wild fowl in a part of the open 
creek, he had fired his fowling-piece, first within a quarter of a mile of 
the decoy and afterwards within 200 yards of it, and had killed several 
widgeons. The judge left these facts to the jury as evidence of a wilful 
disturbance of the plaintiff's decoy by the defendant. The jury re- 
turned a verdict for 40s. damages, and the Court, on the motion for a 
new trial, refused to disturb the verdict. They gave no reasons for 
their judgment. Unless a decoy possesses some peculiar privileges in 
the eye of the law, I confess myself quite unable to understand why the 
defendant was liable to an action or was not within his rights in shoot- 
ing the wild fowl at the place he did for the purpose of gaining a live- 
lihood, which is stated to have been his object. In any case, the de- 
cision affords no support to the contention now under consideration. 
For there was no allegation that the plaintiff traded in wild fowl; 
" great profits and advantages," in pleader's language, might well have 
accrued to him without his doing so. And there was no proof that he 
did so. Although some of the learned judges, who support the judg- 
ment below, relied on this case, one at least thinks it bad law. The case 
is important as showing, as I think it clearly does, that the judges of 
the Court of King's Bench in 1809 did not regard the judgment in 
Keeble v. Hickeringill (1) as founded on interference with trade or 
dependent on the presence of malice. 

At page 153 Lord Macnagbten says: — 

As regards authority, there is, I think, very little to be said. It is 
hardly necessary to go further back than Lumley v. Gye (1) in 1853. 
There is not much help to be found in the earlier cases that were cited 
at the bar, not even, I think, in the great case about frightening ducks 



No. 15.] DISPUTES AND COMBINATIONS. 105 

in a decoy, whatever the true explanation of that decision may be. In 
Lumley v. Gye (1) it was held that an action would lie for procuring a 
person to break a contract for personal service. The subsequent cases 
of Bowen v. Hall (2) and Temperton v. Russell (3) are authorities for 
the proposition that the principle is not confined to contracts for per- 
sonal service. There is no doubt much to be said for that proposition. 
But the judgment under appeal does not depend on Lumley v. Gye (1) 
or on any decision before or after that case. It rests only on certain 
dicta to be found first in Bowen v. Hall (2), and afterwards repeated 
in Temperton v. Russell (3). Those dicta are of great weight, owing to 
the eminence of the judge by whom they were pronounced, but they 
certainly were not necessary for the decision in either case. Lumley v. 
Gye (1) was heard on demurrer. The counts which were demurred to 
alleged that the defendant knew " the premises," that is, the existence 
of the contract stated in the declaration and was " maliciously intending 
to injure the plaintiff." Mr. Willes, for the defendant, in reply, point- 
ing out that malice was never averred in actions for seducing servants, 
argued that " the averment of malice can make no difference ; " and 
that seems to have been the opinion of the majority of the Court, who 
thought the action would lie. Crompton, J., treats the allegation of 
malice as meaning nothing more than the allegation of notice, and Erie, 
J., indicates that the principle on which the action is to be rested is that 
" the procurement of the violation of the right — that is, ' the plaintiff's 
right under the contract ' is a cause of action." If so, it would seem to 
follow that, provided the violation is committed knowingly, it cannot 
matter whether the thing is done maliciously or not. And, therefore, 
with all deference to the opinion of Blackburn, J., who, if I rightly 
understand his words in Cattle v. Stockton Waterworks (1), seems to 
say that " malicious intention " was the gist of the action, I should be 
disposed to hold that if a right has been knowingly violated an allega- 
tion of malice is superfluous, and that if there has been no violation of 
any right, malice by itself is not a cause of action. I cannot, therefore, 
agree with the late Master of the Rolls in thinking that the act com- 
plained of was " wrongful " because it was " malicious," and that if 
there be a malicious act, and loss resulting from that act, it does not 
matter whether there has been a violation of right or not. 

At page 1Y3 Lord Davey says: — 

It was, however, argued that the act of the appellant in the present 
case was a violation of the right which every man has to pursue a lawful 
trade and calling, and that the violation of this right is actionable. I 
remark in passing that, if this be so, the right of action must be inde- 
pendent of the question of malice, except in the legal sense. The right 
which a man has to pursue his trade or calling is qualified by the equal 
right of others to do the same and compete with him, though to his 



106 STATISTICS OF LABOK. [Pub. Doc. 

damage. And it is obvious that a general abstract right of this char- 
acter stands on a different footing from such a private particular right 
as the right to performance of a contract into which one has entered. 
A man has no right to be employed by any particular employer, and 
has no right to any particular employment if it depends on the will of 
another. 

But is there any such general cause of action respective of the means 
employed or mode of interference"? I think it unnecessary to comment 
on all the cases which have been cited by counsel, and are referred to 
by the learned judges. I have read them carefully, and I am satisfied 
that in no one of them was anything decided which is an authority for 
the abstract proposition maintained. In every one of them you find 
there was either violence or the threat of violence, obstruction of the 
highway, or the access to the plamtiff's premises, nuisance, or other 
unlawful acts done to the damage of the plaintiff. Nor does it appear 
to me that the gist of the action in those cases was that the plaintiff 
was a trader or exercised a profitable calling. That circumstance, no 
doubt, afforded evidence of the damage. But I suppose that if a 
person obstructed the access to my house or to my vessel by molesting 
and firing guns at persons resorting thither on their lawful occasions, 
I may have my action against him, though I do not keep a school, or I 
am not a trader, but sailing in my yacht for my own pleasure. Or, if a 
person obstructs my free use of the highway and I suffer damage 
thereby, I have a right of action, though my carriage does not ply for 
hire, but is used only for my own purposes. It is strange that if there 
be any such right of action for interference with trade, there is not to 
be found some clear authority in the law books in its favor. And, as 
remarked by one of the learned judges, if those who argued and those 
who decided Lumley v. Gje (1) had been aware of any such general 
doctrine, it would have disposed of that case without the elaborate con- 
sideration to be found in the judgments. I do not think that the well- 
known action for slander of a trader's goods supports the larger propo- 
sition attempted to be founded on it. Blackstone treats that action as a 
particular example of slanderous words. And it appears to me an 
obvious fallacy to argue backwards from the existence of some recog- 
nized and well-known cause of action to a larger and wider legal propo- 
sition of which the cause of action in question might be trea,ted as a 
particular case if the larger proposition had been generally recognized. 

The authority most relied on in support of the proposition main- 
tained by the respondents is the well known case of Keeble v. Hicker- 
ingill (2), or, more properly, the dicta of Lord Holt as reported in the 
note to 11 East. That case was an action by the owner of a decoy 
pond against the defendant for driving away his wild fowl by firing 
guns with intent to damnify the plaintiff. It appears to have been 
twice argued, and there are four separate reports of it, which do not 
altogether agree as to the grounds of the judgment. But I think it was 



No. 15.] DISPUTES AND COMBINATIONS. 107 

decided on the ground that the act of the defendant was a wilful dis- 
turbance of the enjoyment by the plaintiff of his own land for a lawful 
and profitable purpose, and what is called in law a nuisance. The 
reported cases in which the case has been followed, Carrington v. Taylor 
(3) and Ibbotson v. Peat (4), support this view. If this be a correct 
view of the decision, it is no authority for the larger proposition founded 
on it by the respondents; and the dicta of Lord Holt, however much 
entitled to respect, are inadequate to support the weight which it is 
sought to place upon them. 

At page 179 Lord James of Hereford says : — 

If the principles laid down in the judgment of Lord Esher in the case 
of Bowen v. Hall (1) and in the case of Temperton v. Russell (2) were 
applied to the ordinary affairs of life, great inconvenience as well as 
injustice would ensue. Every competitor for a contract who alleged 
that he was the best person to fulfil it would be liable to an action. 
Take the case of an architect who seeks to be employed to the exclusion 
of his rivals. He says : " My plans are the best, and following them 
will produce the best house at the least cost. Therefore employ me and 
not A. or B." If he be so employed the architect . would, according to 
the dicta in Bowen v. Hall (1), be liable to an action at the suit of his 
rivals. For he has induced a person not to enter into a contract with a 
third person, and his object clearly was to benefit himself at the ex- 
pense of such third person. Indeed, if the opinion delivered by the 
late Cave, J., that it is actionable for a cook to say to her master, " Dis- 
charge the butler or I will leave you," is correct, in that case the ingre- 
dient of " being desirous to benefit herself at the expense of a third 
person " is wanting. For the objection of the cook might well proceed 
from a motive which would not represent any gain to herself. 

But I am aware that it was urged at the Bar, that even if the views 
which I have expressed to your Lordships be correct, there is an excep- 
tion from general principles in favor of those whose trade or employ- 
ment has been interfered with. I do not assent to this view. Before 
discussing the question it is necessary that some definition of the words 
" interfered with " in their legal sense should be given. Every man's 
business is liable to be " interfered with " by the action of another, 
and yet no action lies for such interference. Competition represents 
" interference," and yet it is in the interest of the community that it 
should exist. A new invention utterly ousting an old trade would cer- 
tainly " interfere with " it. If, too, this loose language is to be held 
to represent a legal definition of liability, very grave consequences 
would follow. Of course the conduct of the boiler-makers in the case 
before your Lordships amounted to an interference with the plaintiff's 
business, and yet, as has been pointed out, it is not said that an action 
lies against them. Every organizer of a strike, in order to obtain higher 



108 STATISTICS OF LABOR. [Pub. Doc. 

wages, " interferes with " the employer carrying on his business ; also 
every member of an employers' federation who persuades his co-em- 
.ployer to lock out his worlanen must " interfere with " those workmen. 
Yet I do not think it will be argued that an action can be maintained in 
either case on account of such interference. But whatever meaning 
may be attached to the words " interfere with/' I see no ground for 
saying that any different rule should be applied to cases of interference 
with a man when carrying on his trade or business, or when he is en- 
gaged in any other pursuit. In the Mogul Steamship Co. Case (1) 
there was an extreme case of mterference with the plaintiff's business 
by methods which directly injured the plaintiffs in their trade for the 
express purpose of benefiting the defendants. The admitted inter- 
ference was carried on by several defendants in a combination which 
in one sense amounted to a conspiracy, yet it was held by this House 
that no action could be maintained, for the acts done were not unlawful 
and the combination was not a criminal conspiracy. 

My Lords, I abstain from passing in review the older cases which 
refer to interference with trade or business, for they have already been 
very fully reviewed and dealt with. I content myself with saying that I 
do not think they establish more than that the interference which is in 
itself unlawful constitutes a cause of action. It seems somewhat con- 
trary to common sense that an interference which is rightful when 
applied to general subjects becomes wrongful when a trade or business 
is subjected to it. 

The plaintiffs counsel, as I have already said, also relied 
strongly upon a passage in Lord Justice Bowen's judgment in 
the Mogul case in which after explaining that there can be no 
actionable tort without the violation of a legal right, his Lord- 
ship proceeded as follows : — 

No man whether trader or not, can, however, justify damaging an- 
other in his commercial business by fraud or misrepresentation. Intim- 
idation, obstruction and molestation are forbidden; so is the intentional 
procurement of a violation of individual rights, contractual or other, 
assuming always that there is no just cause for it. 

This proposition is also said to be but a corollary from the 
more general proposition that intentionally to do any harm to 
another person without just cause is an actionable tort. It 
cannot, however, be too carefully borne in mind, when consider- 
ing the above passage, that the judgment from which it was 
taken was subsequent to the decision of the Court of Appeal in 
Bowen v. Hall, and prior to the decision of the House of Lords 



No. 15.] DISPUTES AND COMBINATIONS. 109 

in Allen v. Flood. Lord Justice Bowen followed, as lie was 
bound to do, the decision in Bowen v. Hall, but the law laid 
down in this case was, as I have submitted, over-ruled by a 
majority of the Lords in Allen v. Flood. 

Finally, if the question be considered on general principles 
and apart from the decision in Allen v. Flood, I submit that 
there is no general rule of law that a person who by some act 
intentionally does harm to another is 'prima facie liable to him. 
To make him liable it is necessary to show that the defendant 
has violated some right of the plaintiff, and a person has no 
more right to be unmolested in his trade, business or employ- 
ment than he has when he is doing anything else, which he is 
at liberty to do. A workman, for reasons either good or bad, 
molests an employer by threatening to take part in a strike if 
he should continue to employ certain other workmen; could it 
be for a moment maintained that the employer or any such other 
workmen have any right of action ? Again, a person for some 
reason or other induces a number of tradesmen to abstain from 
dealing wdth another tradesman or merchant; can it be con- 
tended that the merchant or tradesman thus molested is entitled 
to recover compensation ? Indeed, that the general principle 
contended for by the plaintiff's counsel in Allen v. Flood does 
not form part of the common law almost necessarily follows 
from the judgment in Lumley v. Gye, for if it did, it would (as 
was observed by Lord Davey and Lord Watson) have certainly 
been known to the very eminent judges by whom that case was 
decided. Yet no mention of it is to be found in any of their 
elaborate judgments, although it would evidently have afforded 
an easy solution of the important question which that case in- 
volved. 

No doubt a legal system may exist, or might be constructed, 
in which the law of tort was founded on the principle that in- 
tentionally to cause damage to another person is, in the absence 
of reasonable cause, an actionable tort, it being left to the judge 
to decide whether there is or is not a reasonable cause. It is, 
however, impossible, since the decision in Allen v. Flood, to 
maintain that such a principle is recognized in our existing legal 
system; for it would be evidently inconsistent with the legal 
proposition which, to use Lord Lindley's words, was so fully 



110 STATISTICS OF LABOR. [Pub. Doc. 

and authoritatively established by that case; and which his 
Lordship stated in the following words : — 

An act otherwise lawful although harmful does not become actionable 
by being done from a bad motive and with intent to annoy or harm 
another. 



JSTor is it less evident that to introduce such a fundamental 
principle would be in the highest degree unwise and inex- 
pedient, inasmuch as it would make the whole law of torts 
vague and uncertain, until a great quantity of new judge-made 
law had determined in what cases there is and in what cases 
there is not reasonable cause or justification. 

The House of Lords recently decided that it has no power 
to over-rule one of its own decisions, but as there are numerous 
dicta throwing doubt on what was, unless I am mistaken, decided 
in Allen v. Flood, I think it should be expressly enacted, as is 
proposed in Sir C. Dilke's Bill that 

A person shall not be liable for doing any act not in itself an action- 
able tort, only on the ground that it is an interference with another 
person's trade, business or employment. 

Report by Sir Godfrey Lusliing-ton. 

The Taff Yale Case. 

With all that is said in the Report on this case I am in com- 
plete accord. I hold it of great importance that in the conduct 
of strikes workmen should recognize their duty to conform to 
the law, and feel themselves to be not only workmen pursuing 
their own interest but members of society at large, and, like 
everybody else, responsible for their actions. 

But for the same reason I dissent from the proposal in the 
Report that the Provident Funds of Trade Unions should be 
exempt from liability. ~Eo reason is given for this but the 
encouragement of thrift. Thrift is a good object; but thrift 
comes after payment of just debts, and certainly not least, debts 
incurred in consequence of wrong-doing to others. The case is 
only made the stronger by the attempt altogether to repudiate 



No. 15.] DISPUTES AND COMBINATIONS. . Ill 

debts of this character. That workmen should collectively do 
wrong, and be able to refuse to those who have suffered from 
such wrong anv reparation out of the funds they have collectively 
saved for their own use and benefit, is contrary to justice. 
The proposed exception is quite anomalous. In the case of an 
individual debtor all insurance policies of which he is the 
beneficiary owner pass to his trustee in bankruptcy. The reser- 
vation, made in misericordiam, of a workman's tools and bed- 
ding, is an exception that marks the rule, and the value of such 
goods is trifling, whereas the Provident Punds of a Trade Union 
may amount to hundreds and thousands of pounds. So in the 
case of societies. Priendly societies are Provident societies; 
but the official rule in the case of a dividing society expressly 
provides that it shall be the duty of the Committee of Manage- 
ment to see that all claims upon the society existing at the time 
of any division of the funds thereof are met and provided for 
before any such division takes place. And the same principle 
would be followed in the event of a society being dissolved. 

I may add that the practical difficulties in separating provi- 
dent funds from other funds, or rather in securing that such 
separation has been made and observed, are very great indeed. 
Unregistered Trade Unions are not bound to keep any accounts. 
Registered Trade Unions are bound once a year to send in a 
return in a prescribed form. At no other time do the accounts 
come before the Registrar, and there is no provision for a public 
audit. The auditors are appointed as prescribed by the rules, 
and there is nothing to prevent members of the Union being 
chosen for the office. 

The objection above stated applies still more strongly to Mr. 
Webb's suggestion that out-of-work funds should be also ex- 
empted. The term out-of-work-funds is an ambiguous one. On 
this point I may refer to the Trade Union Provident Funds 
Act, 56 and 57 Vic, c. 2, which in granting exemption from 
income tax to Trade Union Funds applicable and applied solely 
for the purpose of Provident Funds declared that the expression 
Provident Funds should include, inter alia, payments made to 
members out of work. The Bill w^as introduced into Parliament 
as a proposal to exempt Provident Funds pure and simple, and 



112 . STATISTICS OF LABOR. [Pub. Doc. 

as such passed through both Houses without any amendment 
or discussion. But the accounts of many Trade Unions show 
no difference between payment to members who are out of 
work from slackness of trade and payments to members who 
are out of work because of a strike. And there is reason to 
believe that, although strike pay is not officially regarded as 
pay to members out of work, there is an unknown number of 
cases in which what are virtually Strike funds are exempt from 
income tax. 

The Report further recommends a special enactment to pro- 
tect a Trade Union from undue liability on account of the acts 
of its Branches as its agents ; and one or more of the Commis- 
sioners suggest a special enactment of a wider scope to com- 
prehend the most important of such principles of responsibility 
for the acts of agents as are applicable to Trade Unions. Both 
of these proposals appear to me open to grave objection. JSTo 
doubt the law of Principal or Agent is from the nature of the 
subject necessarily complicated, and difficulties must be expected 
in applying it to trade unions, just as difficulties have been 
experienced in applying it to other societies and to individuals. 
But it is not suggested that the general law is really inappro- 
priate for Trade Unions, or that its application has been found 
to produce injustice. It would in my judgment be impracticable 
to embody the law in a few clauses, more especially as it is not 
proposed to place any restrictions upon the liberty which Trade 
Unions now possess of adopting any form of internal organiza- 
tion or of relations between the Central Association and its 
Branches that they think fit. And, after all, the responsibility 
as Principal cannot in the case of a Trade Union be made to 
turn solely on the rules of the Society any more than in other 
cases it turns exclusively upon instructions given by the Prin- 
cipal to His Agent. The almost inevitable result of any such 
legislative attempt as is proposed would be to assign to Trade 
Unions some sort of peculiar rule of liability for the acts of 
their agents. This is much to be deprecated. A more stringent 
liability than is imposed on others as Principals would be a 
hardship to Trade Unions, whilst a laxer rule would be unjust 
to those who may suffer from the tortious acts of Trade Unions 
and would impair the salutary effect of the Taff Vale judgment. 



No. 15.] DISPUTES AND COMBINATIONS. 113 

Status of Trade Unions. 

Attention, I think, should be called to the case of Howden v. 
Yorkshire Miners' Association recently decided by the House of 
Lords, which opens up and throws light upon the whole Status 
of Trade Unions as fixed by the Trade Union Acts 1871, 1876. 

Before 1871 the legal position was this. By general law any 
agreement, by whomever made, which in itself was in restraint 
of Trade, was unlawful in the sense of being unenforceable; 
and in the case of an Association, if, as a whole, its purposes 
were unlawful, the Association itself became an unlawful Asso- 
ciation, with the consequence that all its agreements were unen; 
forceable. This was the case with a Trade Union. Its purposes 
were unlawful as being in restraint of Trade : none, therefore, 
of its agreements could be enforced by either party to the same. 
The particular agreement in question might not itself offend 
against the rule as to restraint of trade, as for instance an 
agreement to hire business premises, but for the Courts to 
enforce it would be indirectly to further the unlawful purposes 
of the Union. For the same reason a Trade Union could take 
no civil action for the protection of its funds, nor claim the 
benefit of any power given for that purpose to lawful Associa- 
tions. This was an acknowledged grievance as shown by the 
temporary Trade Union Funds Protection Act of 1869. In 1871 
Trade Unions sought to have this disqualification removed with 
the view that such of their agreements as were necessary for the 
carrying on of the business of a Trade Union and could be 
enforced without an investigation of the internal administration 
of the Union should be treated as valid by the Courts. If, 
however, the Bill were to be to the effect that Trade Unions 
and their affairs should be altogether exempted from the rule 
of restraint of Trade, then, as one consequence, all their agree- 
ments with their members would be enforceable either by mem- 
bers against the Union, or by the Union against the members. 
The first would be objectionable to Trade Unions, as it would 
expose them to litigation and interference by the Courts. The 
second would presumably be rejected by Parliament. Hence 
a middle course was adopted, and this found expression in the 
Trade Union Act of 1871. 



114 STATISTICS OF LABOR. [Pub. Doc. 

The intended objects of the proposed legislation were thus 
explained by the members of the Government in charge of the 
measure when it was introduced successively into the two Houses 
of Parliament. 

Mr. Bruce : ^ 

At present Trade Unions were wholly illegal; and, being so, every 
agreement, however innocent in itself, was tainted with illegality. The 
Bill did not propose to legalize what might be called primary contracts, 
— such as agreements not to work or not to employ, — and no person 
will be entitled for benefits to which he is entitled under a contract with 
a Trade Union. If such contracts were enforceable now, Courts of 
Equity might be called upon to enjoin masters against opening their 
works, or workers from going to work or discontinuing a strike; whilst 
our County Courts would have to make decrees for contributions to 
strikers, or to enforce penalties from workmen who had felt it their 
duty to resume employment.^ It was not proposed to place Trade 
Unions therefore in all respects on the same footing as Friendly So- 
cieties. It was not the opinion of Mr. Harrison who so ably repre- 
sented Trades Unions on the Commission that the law should be altered 
to that extent. 



Lord Morley 



. 3 



The Bill provided that all primary contracts made by Trade Unions 
should not be enforceable, but that the secondary contracts should be 
enforceable. The result of that would be that no legal proceedings 
could be instituted to enforce any agreement between the members as to 
conditions on which they will work, nor compel the payment of sub- 
scriptions, nor for the application of the funds, nor to discharge fines 
imposed upon any person by Courts of Justice, but on the other hand 
the Secretary could sue the Society for his salary, or the Society their 
banker in respect of their fund deposited with him. None of the agree- 
ments he had mentioned were constituted unlawful, but they were 
simply not enforceable by law. Indeed it was not the wish of the 
Trade Unions to be put completely in the position of Friendly Societies. 
Their objects, rights and liabilities were mostly, as remarked by the 
minority of the Commission, such as Courts of Law should neither 
enforce, modify, or annul, but such as should rest on consent. 

^ Hansard, vol. cciv., page 266, 14th February 1871. 

^ See remarks by Crompton, J., in Hilton v. Eckersley and Jessel, M.R., in 
Rigby V. Connol. 

3 1871, May 1st, Hansard ccv., page 1918. 



No. 15.] DISPUTES AND COMBINATIONS. 115 

The sections of the Trade Union Act of 1871 bearing on 
this point are in the following terms : — 

3. The purposes of any Trade Union shall not by reason merely that 
they are in restraint of Trade be unlawful so as to render void or 
voidable any agreement or trust. 

4. Nothing in this Act shall enable any Court to entertain any legal 
proceeding instituted with the object of directly enforcing or recovering 
damages for the breach of any of the following agreements, namely : — 

1. Any agreements between members of a Trade Union as such 
concerning the conditions on which any members for the time 
being of such Trade Union shall or shall not sell their goods, 
transact business, employ or be employed. 

2. Any agreement for the pajTnent by any person of any sub- 
scription or penalty to a Trade Union. 

3. Any agreement for the application of the funds of a Trade 
Union : — 

(a) To provide benefits to members; or 

{b) To furnish contributions to any employer or workman 
not a member of such Trade Union in consideration of such 
employer or workman acting in conformity with the rules or 
resolutions of such Trade Union; or 

(c) To discharge any fine imposed upon any person by 
sentence of a Court of Justice; or 

4. Any agreement between one Trade Union and another; or 

5. Any bond to secure the performance of any of the above- 
mentioned agreements. 

But nothing in this section shall be deemed to constitute any of the 
above-mentioned agreements unlawful. 

Both Section 3 and Section 4 applied to all Trade Unions 
whether registered or unregistered. Section 3 is qualified by 
Section 4. Section 3 clearly enabled the direct or indirect 
enforcement of any of the agreements above described as neces- 
sary for the carrying on of the business of a Trade Union, for 
presumably it would not be one of the agreements mentioned in 
Section 4. Section 4, it will be observed, does not in terms 
absolutely prohibit the enforcement of any of the agreements 
mentioned therein. With their indirect enforcement which 
by virtue of Section 3 was authorized it does not interfere at 
all. But its effect is to forbid Section 3 from being invoked 
for the purpose of directly enforcing any of the agreements 
mentioned in Section 4 ; and, in consequence, it has been decided 



116 STATISTICS OF LABOR. [Pub. Doc. 

that if asked to directly enforce any such agreement the Court 
has to deal with the case as if Section 3 had never been enacted, 
in other words, to deal with it according to the law as it stood 
before 1871 when Trade Unions by reason of their purposes 
being in restraint of Trade were unlawful associations. 

The construction of Sections 3 and 4 taken together has been 
several times before the Courts: and the question considered 
what is the difference between direct and indirect enforcement. 
It has been decided that an application by a member that he 
should be declared entitled under the rules to personal benefits 
or to re-instatement -^ as member of the Trade Union, and 
that an application by the Central Executive for an injunction 
to restrain the branch executive from dividing Union Funds 
amongst the members of the branch contrary to rules ^ were 
applications for the direct enforcement of an agreement within 
Section 4, and could not be entertained by the Court. On the 
other hand it was held by Mr. Justice Fry ^ that an appli- 
cation by a member for an injunction to prevent an amalgama- 
tion of one Trade Union with another was not for a direct 
enforcement of an agreement within Section 4 and could be 
entertained. 

Recently these Sections have been further interpreted by the 
House of Lords in the case of Howden v. Yorkshire Miners' 
Association. The plaintiff, a member of the Association — a 
registered trade union — sued for an injunction to restrain the 
central executive from applying the funds to the maintenance 
of a strike instituted by two of the branches, on the ground that 
the strike had not been formally authorized by the central ex- 
ecutive as required by the rules. The Court of Appeal granted 
an injunction, and this decision was substantially affirmed by 
the House of Lords. Two of the Law Lords, however. Lord 
James of Hereford and Lord Davey, dissented, being of opinion 
that an injunction against the breach of rules was equivalent to 
a direct enforcement of the rules. As to the meaning of the 
word " directly," Lord Davey expressed himself to the effect 
that where the primary object of the action was to enforce the 

^ Rigby V. Connol per Jessd, M. R. 

^ Duke V. Littleboy. 

3 Wolfe V. Matthews, 31 Ch. D. 194. 



Ko. 15.] DISPUTES AND COMBINATIONS. 117 

agreement, and tlie right of the plaintiff to maintain the action 
was founded on his right to have the rules observed, the action 
should be deemed to be one for directly enforcing the agree- 
ment; but, where the construction and effect of the rules (if 
it came in at all) only came in as evidence to support the 
relief claimed, the action would not be one for directly en- 
forcing the agreement. And as an illustration he supposed the 
case of trustees (not being members) suing to recover the prop- 
erty of which under the Act they were statutory owners and 
guardians, by means of an action in which the effect of the 
rules might be immaterial or material only as evidence. The 
other Law Lords gave a different interpretation to the word 
" directly.'' The Lord Chancellor in the course of his judgment 
observed : — 

This argument (of the defendants) seems to assume that the object 
of this enactment was to keep the Trade Unions out of the jurisdiction 
of the Court altogether. I do not think it does anything of the kind. 
... It seems to me that it would have been a very colorable concession 
to the Trade Unions if the legislature had left their funds, which under 
the arrangement made constituted a trust for a particular purpose, 
without any protection against those entrusted with the distribution of 
their funds. That the Court should not interfere with the distribution 
according to their own rules when such distribution was within the 
purposes of the trust is one thing, but that there should be no recourse 
to the Courts where it is threatened to divert them [is another]. . . . 
Surely the section cannot mean that, because the preservation of the 
property in trust is one that individually will benefit the beneficiaries, 
therefore it is a suit for enforcing one of the recited agreements which 
certainly in their terms are inapplicable. 

And on the same point Lord Macnaghten observed : — 

I cannot think that the Legislature intended to strike at proceedings 
for directly enforcing certain agreements, leaving untouched and un- 
affected all proceediugs (other than actions for damages) designed to 
enforce these particular agreements indirectly. To forbid direct action 
in language that suggests that the object of the action so forbidden 
may be obtained by a side wind seems to me somewhat of a novelty in 
legislation. I venture to think that the word " directly " is only put 
in to give point to the antithesis between proceedings to enforce agree- 
ments directly, and proceedings to recover damages for breach of con- 
tract which tend, though indirectly, to give force and strength to the 
agreement for breach of which an action may be brought. 



118 STATISTICS OF LABOK. [Pub. Doc. 

His Lordship then proceeded to say that, whatever the mean- 
ing attached to the expression " directly," the result for the 
present purpose must be the same, because, in his opinion, the 
object of the litigation was not to enforce an agreement for 
the application of the funds of the Union to provide benefits 
for members within Section lY., 3 (a). 

The object of the htigation was to obtain an authoritative decision 
that the action of the Union, which was challenged by the plaiatiff, 
was not authorized by the rules of the Union. The decision might take 
the form of a declaration or the form of an iajunction, or both com- 
bined. But the decision, whatever form it might take, would be the 
end of the litigation. No administration or application of the funds 
of the Union was sought or desu-ed. The object of the litigation was 
simply to prevent misapplication of the funds of the Union, not to 
administer those funds or to apply them for the purpose of providmg 
benefits to members. 

And later on : 

The proceedings which the plaintiff has instituted do not, I think, 
involve the administration of the funds of the Yorkshire Miaers' Asso- 
ciation collected for benevolent purposes or the application of those 
funds to provide benefits for members. Nor was the litigation, as it 
seems to me, instituted with that object. It was simply an application 
to the Court to determine the true construction of certain rules which 
had been, as the plaintiff contended, misconstrued by the Executive of 
the Association. I need hardly point out how disastrous it might be to 
the funds of this Union, and to Trade Unions generally, if there were 
no means of preventing the managers and masters of the Unions from 
diverting the funds from their legitimate and authorized purpose. 

The House of Lords expressed their approval of Wolfe v. 
Matthews, but did not overrule Rigby v. Connol or any of the 
other cases. In affirming the decision of the Court of Appeal 
they varied the Order. The Order as varied was more pre- 
cise and at the same time contained no injunction: it was a 
simple declaration that the payment of strike pay to the financial 
members of the Yorkshire Miners' Association in pursuance 
of a resolution of the Council of the Association (which the 
Order particularized by its date and the date of its confirma- 
tion) was in contravention of the rules of the Association, and 
that the said resolution purporting to authorize such payment 
was ultra vires and illegal. 



No. 15.] DISPUTES AND COMBINATIONS. 119 

The House of Lords as a judicial Tribunal could take no 
cognisance of the declarations made in Parliament previous to 
the passing of the measure in 18 Yl. Those declarations, it 
appears to me, point to the objects of Parliament in the legisla- 
tion of 1871 as having been — if I may so describe them — that 
the general purposes of a Trade Union which were in restraint 
of trade should not be directlv furthered by the enforcement of 
agreements themselves in restraint of trade, viz., the agreements 
mentioned in Sec. 4, and constituting the '' primary '' agree- 
ments described by Mr. Bruce and Lord Morley — but might be 
indirectly furthered by enforcement of agreements not in them- 
selves in restraint of trade (as an agreement to take a lease 
of business premises) — the ^^ secondary " agreements described 
by Lord Morley. If this be so, then it is clear, from the decision 
in Howden v. Yorkshire Miners' Association, that the actual 
terms of the Statute are not adapted to give effect to what in 
1871 was the intention of Parliament, and authorize the Courts 
to exercise a wider control over Trade Unions than was at 
that time contemplated. In the present instance the intervention 
of the court stopped a great strike. The full scope, however, 
of the decision of the House of Lords can hardly be estimated 
until it has been ascertained how far it affects the law as laid 
down in Pigby v. Connol, and other like cases which liave not 
been overruled. 

For these reasons I have thought it right to call attention to 
this case, but I do not suggest any amendment of the Statute. 
The Trade Unions have not, so far as I am aware, made any 
protest against the law as laid down by the House of Lords, 
and that law is, in my opinion, advantageous for the public 
and also for Trade Unions. 

The Report recommends that Trade Unions should be de- 
clared by Statute to be legal associations. But how can a Trade 
Union be declared to be a legal association any more than a 
company can be declared a legal company ? Each is presumably 
legal until it pursues purposes which as a whole are unlawful; 
then it ceases to be so. In my opinion, — at all events for all 
such Trade Unions as might become incorporated (in pursuance 
of a suggestion presently to be mentioned), — nothing more in 
this direction can be done by the Legislature than has been done 



120 STATISTICS OF LABOR. [Pub. Doc.' 

bj Sec. 3 of the Act of 1871, which enacts that the purposes of 
any Trade Union shall not, by reason merely that they are in 
restraint of trade, be unlawful so as to render void or voidable 
any agreement or trust. 

Then as to the recommendation that facultative powers be 
given to Trade Unions either (a) to become incorporated sub- 
ject to, proper conditions, or (&) to exclude the operation of 
Sec. 4 of the Trade Union Act, 18Y1, or of some one or more 
of its Subsections, so as to allow Trade Unions to enter into 
enforceable agreements with other persons and with their own 
members to secure such enforcement. Urom a general point 
of view I am not aware of any objection to the grant to Trade 
Unions of Incorporation '^ subject to proper conditions." In- 
corporation is an organization which is slightly more convenient 
than that which registered Trade Unions now possess, and is of 
neutral significance, being granted by Statute indiscriminately 
to companies within the Companies Acts. Only in my judg- 
ment the proper conditions to be attached to Incorporation would 
be the conditions pertaining to registered Trade Unions. Of 
course if Incorporation were assumed, it would be assumed once 
for all, though it would be possible to devise conditions that 
might from time to time vary according to circumstances. 

The somewhat indefinite proposal, however, of the Report 
for the grant either of Incorporation subject to proper condi- 
tions or of power to exclude Section 4 of the Act of 1871, or 
one or more of its Subsections, is made only for a particular 
purpose, viz., to enable enforceable contracts being entered into 
between a Trade Union of Workmen and a Trade Union of 
Employers for the regulation of terms of employment. Trade 
Unions have not asked for power to enter into such agreements 
and to all appearances are not likely to do so ; I do not therefore 
think the prospect of such agreements is sufficient to justify 
any change, much less so serious a change in the status of Trade 
Unions as is involved in either of these alternatives, for the 
two in this respect are presumably the same. The same provi- 
sions of Section 4 of the Act of 1871 would have to be dispensed 
with, whether there was Incorporation or not. But to dispense 
with Section 4, or any of the more important of its Subsections, 
would really be to subvert the constitution which Trade Unions 



No. 15.] DISPUTES AND COMBINATIONS. 121 

now have under the law. From an equitable point of view, it 
may be reasonable that a Trade Union if it is to be responsible 
in damages to employers for breach of agreement by its mem- 
bers shall in order to protect its funds have legal power to 
compel its members to continue their stipulated contributions 
and legal power to prevent them from working on terms con- 
trary to the stipulations ; and if so, then in turn it would be 
reasonable that members, being thus liable to have their obliga- 
tions enforced against them, should have legal power to sue 
the Union for benefits to which they are entitled. The power 
to sue for benefits is one to which nobody probably would object 
-except the Unions themselves. But I think Parliament would 
decline to allow the law to be used to prevent workmen from 
working or to compel workmen to maintain a Trade Union. I 
therefore altogether dissent from the Recommendation. 

Picketing. 
I dissent from the proposal in the Report to strike out from 
the list of offences made punishable by Section 7 of the Act 
of 1875 the watching and besetting of premises. This proposal, 
I understand, is made on the ground that the practice is (not- 
withstanding the words in the Section ^^ with a view to compel") 
presumably for a legitimate purpose, that of reasonable persua- 
sion, and that cases of abuse are sufiiciently met with by other 
provisions of the law; if watching and besetting amount to in- 
timidation, a criminal offence is committed under the Statute; 
if to a public nuisance, an indictment will lie : if to a private 
nuisance, the aggrieved person has a right of action and may 
apply for an injunction. Experience, however, has shown that 
in cases of this description the remedy of an indictment at 
the next Quarter Sessions is illusory ; still more so is an action 
at law against persons who do not possess the means to make 
reparation ; nothing is really elf ective to put a stop to misconduct 
of this kind but criminal proceedings in a Court of Summary 
Jurisdiction. It was doubtless for this reason that Parliament 
in 1875, whilst by Section 3 excluding to a certain extent in- 
dictments for conspiracy, passed Section 7 making such acts of 
molestation as were likely to be committed in times of strike 
offences summarily punishable with imprisonment. Amongst 



122 STATISTICS OF LABOR. [Pub. Doc. 

these was watching and besetting of premises — certainly not 
less an act of molestation than other of the acts mentioned in 
that Section. In my opinion, even supposing that the sole 
purpose was that of peaceable persuasion, watching and besetting 
of the premises ought not to be permissible. It is quite different 
from peaceable persuasion without watching or besetting, or 
from anything which workmen are at liberty to do in their own 
interest,- though it may operate to the inconvenience of others: 
it is an act of direct interference and aggression, and ought to 
be forbidden as a trespass on the conifort of others. But to 
make the supposition that the object is only peaceable persuasion 
is to take a far too optimistic view of the matter; the reality 
is very different. As is stated in the Report, the evidence which 
the Commission has received is overwhelming to show that 
watching and besetting for the purpose of peacefully persuading 
is really a contradiction in terms. It always operates as compul- 
sion, and it cannot be doubted that because it is found to com- 
pel Trade Unions systematically resort to it. To judge the 
matter aright, it is necessary to bear in mind the excited condi- 
tion of feeling amongst workmen in times of strike. I am not 
referring to graver cases where acts of violence have been com- 
mitted, or where the maintenance of order has become a serious 
difficulty to the police, or where it has been found necessary to 
provide special accommodation for worlanen electing to work so 
as physically to separate them from those on strike, though all 
these are contingencies that may easily arise. I am referring 
to ordinary strikes, and as to these it is sufficient to recall the 
language of opprobrium in which the leaders of the strike in 
their public harangues habitually speak of those who have not 
joined the strike, in order to form a conception of the language 
which the rank and file sent out under the orders of these same 
leaders to act as pickets are likely to use in their dialogues with 
workmen who think fit to continue to work. When systematic 
picketing has been established a workman cannot enter or leave 
his place of work without being liable to be intercepted and 
interviewed by those who are watching and besetting the place 
for the purpose, and who, even if numbering only one or two, 
represent a large number of workmen on strike, smarting under 
what they consider to be a grievance, suffering from want of 



No. 15.] DISPUTES AND COMBINATIONS. 123 

wages, and angry at seeing their places filled up by others. 
And this may go on for days or weeks together, or similar 
dialogues may be renewed day after day at the workman's own 
door in the presence perhaps of his wife and family, or the 
same procedure may be applied to the workman's wife in the 
workman's absence. Even if the interview begins with per- 
suasion, it is obvious, as the Report also states, how easy it 
must be to pass from the language of persuasion into that of 
abuse, and from words of abuse to threats and acts of violence. 
A considerable proportion of the cases of physical violence 
which occur during times of strike arise directly or indirectly 
out of picketing. In one way or another under the name of 
picketing compulsion and intimidation are extensively exer- 
cised, and are very difficult to detect. The truth is that picket- 
ing is a form of industrial conscriptions ; and, in organizing it, 
Trade Unions act as if they represented not only their own 
members but the entire body of workers, and had authority to 
enforce regulations to which all were bound to conform. It is 
a system which could not be habitually practiced by any society 
in which membership was purely optional, and which recognized 
that every individual was free to act as he pleased. In connec- 
tion with this point it must be remembered that the Statute 
does not apply exclusively to workmen; at the instance of 
Trade Unions it was made of general application, and extends 
to the whole community. As a fact I believe the particular 
enactment is not required for anybody except workmen in time 
of strike. Picketing exists nowhere but in connection with 
Trade Unions. Is it possible, for instance, to imagine that a 
tradesman should picket the premises of a competitor ? Or that 
one Railway Company should picket the station of another Rail- . 
way Company ? Or that the authorities of a church or chapel 
should watch and beset the approach to a rival church or 
chapel ? Or that picketing should be introduced into political 
warfare, and say the Conservative organizations should station 
pickets at the doors of the private residences of Liberal members 
of Parliament, to watch them day after day coming in and going 
out, to communicate or to receive information or to peacefully 
persuade them ? The very suggestion seems ludicrous ; yet this 
is but a very faint picture indeed of what in times of strike 



124 STATISTICS OF LABOR. [Pub. Doc. 

individual workmen have actually to undergo at the hands of 
Trade Union pickets. 

I am of the opinion that picketing is an abuse for which a 
remedy is urgently required, and that the personal freedom 
of workmen needs not less protection than hitherto, but more. 
I, therefore, recommend that the existing prohibition of watch- 
ing and besetting be retained, and that the proviso permitting 
it for the sole purpose of giving and receiving information be 
repealed. 

I think Section 7 of the Act of 1875 should be amended so as 
to make it clear that the person against whom any of the 
forbidden acts of molestation are committed need not be the 
same person who is intended to be compelled. It has already 
been decided in Lyons v. AA^ilkins that this is the proper inter- 
pretation of the Statute; but the language of the Statute is far 
from clear. The offence of molesting a workman is, it is obvious, 
equally great whether it is with a view to compel the workman 
not to work or the employer not to employ; and the offence 
of molesting a wife is not lessened by the fact that the object 
is to compel the husband not to work. 

I agree with the proposal that an individual shall not be liable 
for doing any act not in itself an actionable tort only on the 
ground that it is an interference with another person's trade, 
business, or employment. This is a general and comprehensive 
provision, covering almost everything; but it will be advisable 
also to particularize. 

I therefore agree also with the proposal to declare that a 
strike (including a sympathetic or secondary strike) from what- 
ever motive or for whatever purpose, apart from crime or 
involving breach of contract, is not illegal. 

Also with the proposal that to persuade to strike, i.e., to desist 
from working, apart from breach of contract is not illegal. But 
I should wish the proposal to extend to persuading not to enter 
into a contract of employment. 

I further recommend that the notification of a strike, whether 
given by the workmen themselves or by anyone else on their 
behalf, shall be declared not to be illegal. This appears to be 
a simple matter, but it has a long legal history of its own, 
reaching dov^n to the present time. 



No. 15.] DISPUTES AND COMBINATIONS. 125 

Conspiracy. 

On the subject of conspiracy I concur with the recommenda- 
tion of the Eeport. I also concur with the reason given in the 
Eeport for such recommendation, viz., that the considerations 
which led to restrictions being placed by the Statute of 1875 
upon criminal proceedings for conspiracy in trade disputes 
justify the introduction at the present time of similar restric- 
tions on civil proceedings. But in my opinion the logical 
argument in favor of establishing such conformity or of supple- 
menting the exceptional provisions made in 1875 for the case 
of trade disputes, is insufficient to support what is in effect a 
recommendation to supersede the law laid down and approved 
by the House of Lords in their decision on Quinn v. Leathem — 
more especially as that argument may be met, I do not say 
overborne, by the counter argument that many acts are torts 
without being crimes, and that conspiracy to injure may be 
one of them. Believing as I do that substantial reasons exist 
for holding there to be a strong case for relief against the law 
as it now stands, I think these reasons require to be expressly 
stated. Nor is it enough to express these in general language, 
as to say that the law is vague and unintelligible and produces 
hardships in forbidding acts which should be permissible. To 
appreciate the case it is necessary to follow the operation of 
the law to its practical consequences, and this unfortunately 
cannot be done without reference to the technicalities of the 
complex and obscure law of conspiracy, and even to their history. 
I also think that there should be offered some reasoned assurance 
that the result of the suggested change in the law will not be 
to make permissible acts which ought to be forbidden. 

First, then, with regard to criminal proceedings for con- 
spiracy, and to the circumstances which led up to the Statute 
of 1875. 

A complete statement of the law as it stood in 1873 may be 
found in the late Mr. Justice Wright's. Treatise; for present 
purposes the following may perhaps suffice. The offence of 
criminal conspiracy as defined by the Ordinance of Conspir- 
ators of 1305 was limited to agreements between two or more 
persons to commit the particular act of false and malicious in- 



126 STATISTICS OF LABOE. [Pub. Doc. 

dictment for treason or felony, and could only be prosecuted in 
the event of the person so falsely accused having been tried in 
consequence and acquitted. In course of time conspiracy came 
to extend to agreements to commit any crime (also such fraud 
as was not criminal), and by the end of last century it was 
recognized as including agreements to commit a civil wrong (R. 
V. Warburton, 1870, L. R. i. C. C. 274). Thus the agreement 
or combination, whether it was to commit an offence or to 
commit a tort, was a combination to commit some unlawful 
act, something forbidden by the law — the criminal or the civil 
law as the case might be. In accordance with this was the 
common description — it cannot be called a definition — of a 
criminal conspiracy, viz., a combination or agreement to do 
an unlawful act or to do a lawful act but by unlawful means. 
About the same time the crime of conspiracy (an indictable 
misdemeanor) was held to consist in the agreement to do the 
unlawful act; the agreement entered into, the crime was com- 
plete, whether the unlawful act was carried out or not. So far 
there is no dispute. But, the common description of conspiracy 
notwithstanding, were there not cases in which a combination 
to do acts, such as when done by an individual were neither 
criminal nor tortious, was a criminal conspiracy? Was not a 
combination to do intentionally acts at once harmful and not 
unlawful — call the acts having this double characteristic in- 
jurious acts — known as a conspiracy to injure ? ^ And if 
so, was the combination to do such acts a prima facie con- 
spiracy, if they were done at all ? If they were done with a 
bad motive ? If they were done to a trader in the course of 
his trade ? These are questions which will now be considered. 
The difficulty whether combination to injure constituted a 
criminal conspiracy may be attributed in great measure to the 
opinions held by Judges on the question as to what circum- 
stances (if any) would cause the like injurious acts to be 

^ " Conspiracy to injure " may be taken as the generic term, comprehending 
a variety of species known in " Pleaders " language as conspiracy to oppress, con- 
spiracy to coerce, conspiracy to impoverish, etc. But it must always be borne 
in mind that it does not mean to commit a legal injury or legal wrong, as the 
phrase might seem to import : it means to commit an act neither criminal nor 
tortious, but intentionally hurtful. This is the more necessary because in some 
instances, notably in FitzGerald, J.'s, charge to the Jury in R. v. Parnell, the term 
conspiracy to injure is applied to a conspiracy to commit a legal wrong. 



No. 15.] DISPUTES AND COMBINATIONS. 127 

unlawful when done by an individual apart from combination. 
Lord Esber, for instance, held that a lawful act, if done with 
malice, became unlawful (Bowen v. Hall, and other cases), 
Sir W. Erie that an injurious act of an individual, if done in 
restraint of the free course of trade, was actionable and even 
criminal. 

It is not to be supposed that views like these as to what was 
unlawful for individuals were accepted universally. Lord 
Esher's view of the effect of motive was inconsistent with 
Stevenson v. Newnham, decided in 1853. And that the right 
attributed by Sir W. Erie to a trader to protection from inter- 
ference in the free course of trade — a right, it may be pointed 
out, described not as absolute but as qualified by equal rights 
attributed to others — was not at the time completely recog- 
nized, may be inferred from the variations of opinion on the 
subject amongst the judges in the case of Allen v. Flood (in 
1897), where some regarded it as the privilege of capitalist 
traders or employers, others as the privilege of all traders 
whether capitalists or workmen, but of nobody else ; others as 
the common right of everybody to pursue his calling or to do 
what he was at liberty to do; others again denying that there 
was such a right at all beyond the right to protection from inter- 
ference from anything which by the general law, whether civil 
or criminal, was forbidden. But, as admitted by Sir W. Erie, 
the question of the violation by an individual of the trader's 
right to a free course of Trade had not been made the subject 
of proceedings in the courts. ^ 

To judges who held such opinions a combination to injure, if 
it was to injure a trader, or if it was to do harm with a bad mo- 
tive, must have appeared to be a combination to do what was 
im] awful and therefore to fall into the ordinary description of a 
criminal conspiracy, viz., a combination to do an unlawful act or 
do a lawful act by unlawful means. To other judges a combina- 
tion to injure under the same circumstances would be a combi- 
nation to do something which if done by an individual was not 
unlawful. This divergence of opinion may help to explain ap- 



^ The cases supposed to be of this kind were reviewed in Allen v. Flood and 
were shown to be cases of interference by acts which according to the general 
law were unlawful, irrespective of the motive with which they were done. 



128 STATISTICS OF LABOR. [Pub. Doc. 

parent inconsistencies of language found in the judgments, the 
acts done being described sometimes as wrongful, sometimes as 
not wrongful. Also some judges use the word wrongful of act& 
although in their opinion they are not actionable. 

Whether the so-called conspiracy to injure was the outcome of 
the doctrine formerly entertained that acts of interference with 
a trader or malicious acts were torts when done by an individual ; 
or whether it is the relic of the jurisdiction, once exercised by 
the Star Chamber and in some measure inherited by their 
immediate successors, the • Court of Queen's Bench, to repress 
and punish whatever acts, whether done by individuals or in 
combination, might seem to them contrary to public policy; or 
whether it was created from the consideration, which in modern 
times is put forward as its justification, that there are some 
things which though permissible to individuals should be for- 
bidden to combinations, it is now impossible to say. What i& 
certain is that the view of a combination to injure with a bad 
motive, or a combination to injure a trader, being a criminal 
conspiracy, was from time to time assumed to be the law by 
judges on the bench, and that in some instances, very few 
however in number, the same view was enforced by them. 

Thus in Gregory v. Duke of Brunswick, 1843, the Queen's 
Bench, including Tindal, C.J., held that whilst it was lawful 
for an individual to hiss at a theatre, a combination to injure 
an actor professionally by hissing him off the stage was a 
criminal conspiracy for which, if special damage was proved, 
an action would lie. In R. v. Rowlands, 1851, where strikers^ 
were indicted for conspiracy to injure an employer, the judge, 
Sir W. Erie, directed the jury that, if it was proved that the 
strikers had offered money to induce workmen to quit the em- 
ployer's service and the jury thought this had been done witk 
the motive of forcing the employer to accept a tariff of wages, 
they were to find a verdict of guilty. In R. v. Druitt, 1867, a. 
Trade Union case. Lord Bramwell laid it down that, if a set of 
men agreed among themselves to coerce the liberty of mind or 
thoughts of another by compulsion or restraint, they would, by 
the Common Law, be guilty of a criminal offence, viz., that of 
conspiring against the liberty of mind and will of those towards- 
whom they so conducted themselves. He was referring, he said,; 



No. 15.] DISPUTES AND COMBINATIONS. 129 

to coercion or compulsion, something that was unpleasant and 
annoying to the mind operated upon. In R. v. Bunn, 1872, 
the gas stokers' case, Lord Esher explained to the jury that 
the charge against the defendants of conspiracy was that of a 
combination to press the company to conduct their business 
contrary to their own will by an improper threat and improper 
molestation ; and that at common law there is improper molesta- 
tion if there is anything done with an improper intent which 
the jury might think an annoyance or unjustifiable interference, 
and which in their judgment would have the effect of annoying 
or interfering with the minds of the persons carrying on such 
a business as the gas company was carrying on ; and he directed 
the jury that, if they thought the prisoners had done what they 
did with the evil intent of forcing their masters to carry on 
their business in a ^^-ay which they knew was contrary to the 
will of their masters, they would say the prisoners were guilty 
of conspiracy. 

These cases, however, cannot be said to be conclusive of what 
at that time was held to be the law. In B. v. Bowlands, when 
the case came before the Queen's Bench on the question whether 
the judge had misdirected the jury, the court was inclined to 
say the charges laid were too vague and, without expressing 
any opinion on their validity, they intimated that they thought 
there was sufficient doubt to grant a rule nisi in arrest of judg- 
ment; but at the suggestion of the Court the Counsel for the 
Crown assented to a nolle prosequi in respect of the three Counts. 
As to R. V. Druitt, 10 Cox, 592, the opinion expressed by Lord 
Bramwell has been adversely commented upon by Coleridge, 
C. J.,^ but approved by the present Lord Chancellor and others.^ 
The ruling in R. v. Bunn led to the appointment of a Royal 
Commission presided over by Cockburn, C.J., and including 
Mr. Russell Gurney, then Recorder of London, and the effect 
of their report, which dealt only with criminal proceedings, was 
that in their opinion conspiracy comprised combination to com- 
mit a crime and combination to commit a tort, but not a combina- 
tion to commit what was neither one nor the other ; at all events 
they recommended that as to labor disputes this should be made 

^ Curran v. Treleaven. 2 iggi. Mogul case, p. 38. 



130 STATISTICS OF LABOE. [Pub. Doc. 

clear by statute; and it was upon this Report that the Govern- 
ment introduced the Bill which became the Act of 1875 herein- 
after mentioned. Three years later, in 1878, another Royal 
Commission, consisting of Lord Blackburn, Mr. Justice Barry, 
Mr. Justice Lush and Sir Fitz James Stephen, appointed to 
consider a Draft Code of Indictable Offences, presented in their 
Report a code with a view to its being brought before Parlia- 
ment for enactment. This code contained a list of conspiracies, 
but amongst them was not a conspiracy to injure, the Commis- 
sioners expressing the opinion that there was not perhaps any 
distinct authority for the proposition that there are at common 
law any criminal conspiracies other than those that were con- 
tained in the code they recommended. 

It is also to be observed that the labor cases mentioned above 
induced Parliament to legislate for the purpose of preventing 
their repetition. Thus the ruliAg in R. v. Rowlands led in the 
first instance to the Act of 1869 which, amending the Act of 
1825, declared that (in the cases in which combination was 
permitted by Statute), no person should by reason merely of 
his endeavoring peaceably and in a reasonable manner and 
without threats or intimidation, direct or indirect, to persuade, 
etc., be deemed guilfy of molestation or obstruction within the 
Act of 1825, or should therefor he subject to any prosecution 
or indictment; for Conspiracy. Later on, the same judgment — 
in conjunction with that in R. v. Druitt — led to the Criminal 
Law Amendment Act 1871. This Act, after repealing the Act 
of 1825, by which threats, intimidation, molestation, and obstruc- 
tion had been made punishable without being defined, substituted 
an enactment defining acts of this character which, if done with 
the object of coercing, were to be punishable, and qualified it 
by the following important proviso : — 

Provided that no person shall be liable for doing or conspiring to do 
any act on the ground that such act restrains or tends to restrain the free 
course of trade, unless such act is one of the acts hereinbefore specified 
in the section and is done with the object of coercing as hereinbefore 
is mentioned. 

Finally, when that proviso proved insufficient to prevent in 
R. V. Bunn a ruling similar to that in R. v. Rowlands, the 



No. 15.] DISPUTES AND COMBINATIONS. 131 

Act of 1871 was superseded by that of 1875 which, withdrawing 
the matter altogether from the Courts, provided : — 

An agreement or combination by two or more persons to do or pro- 
cure to be done any act in contemplation or furtherance of a Trade 
Dispute between employers and workmen shall not be indictable as a 
conspiracy if such act committed by one person would not be punishable 
as a crime. 

A crime for the purposes of this Section means an offence punishable 
on indictment, or an offence w4iich is punishable on summary convic- 
tion and for the commission of which the offender is liable, under the 
Statute making the offence punishable, to be imprisoned either abso- 
lutely or at the discretion of the Court as an alternative for some other 
punishment. 

This enactment, still in force, did not, it will be noted, declare 
what was the law of conspiracy or alter the law, and applied 
only to criminal proceedings for conspiracy in Trade Disputes. 
So limited, however, whilst leaving untouched criminal proceed- 
ings for conspiracy to commit a crime punishable with imprison- 
ment, it put an end to criminal proceedings for conspiracy to 
commit an offence not so punishable, for conspiracy to commit 
a tort, and (assuming there were such a conspiracy) for con- 
spiracy to injure. 

With this, so far as concerns Trade Disputes, the chapter of 
criminal proceedings for conspiracy was closed, or rather was 
thought to have been closed. From the judgment in Quinn v. 
Leathem it appears likely that questions will be raised as to the 
meaning of " any act in contemplation or furtherance of a Trade 
Dispute between employers and workmen." 

The scope of criminal conspiracy will now be further con- 
sidered mainly under the head of civil actions for conspiracy. 

A civil action for conspiracy is an action for damages suffered 
from a criminal conspiracy, whatever that may be. Proof of 
special damage having been caused is, however, a necessary 
condition. Civil proceedings — in this respect unlike criminal 
proceedings — cannot be instituted for a criminal conspiracy if 
the conspiracy has rested in agreement and nothing has been 
done upon it. The question as to civil liability for a conspiracy 
to injure causing damage is in the case of a Trade Dispute 
complicated by the Act of 1875 having forbidden criminal 



132 STATISTICS OF LABOR. [Pub. Doc. 

proceedings in tliat case; but beyond saying that the term con- 
spiracy has no legal meaning except as an indictable conspiracy, 
and that until Quinn v. Leathern there is no instance on record 
of an action for conspiracy which might not have been indictable 
as a criminal conspiracy, I will consider the matter only from 
a general point of view irrespective of the Statute of 1875. 

Lor this purpose it is necessary to refer to the history of 
the peculiar practice of civil proceedings for Conspiracy. 
Originally there was a Writ of Conspiracy applicable to civil 
proceedings for damages occasioned by a criminal conspiracy 
as defined by the Ordinance of Conspirators of 1305 (false 
accusation of treason or felony) . Under this Writ it was neces- 
sary for the plaintiffs to prove that there had been a combination 
and that the combination to do the act charged was a criminal 
conspiracy within the Ordinance, but it was not necessary to 
prove that apart from conspiracy this act, when done by an 
individual, was unlawful. The Writ, however, was required in 
its terms to follow closely the description and conditions of the 
offence, and unless all the conditions were strictly fulfilled was 
unavailable. Hence, to prevent the defeat of justice, a remedy 
was provided by a Writ of Trespass on the case in the nature of 
conspiracy, so called because the Writ was founded on the cir- 
cumstances of the case, analogous to but not exactly identical 
with those to which the ancient Writ was appropriated. Such 
a Writ was popularly also called a Writ of Conspiracy and 
generally did expressly charge conspiracy, often indeed where 
there was only one defendant. But such action on the case was 
in truth not an action for conspiracy but a simple action of 
tort : the plaintiff had not to prove conspiracy, but had to prove 
that apart from conspiracy the defendant or defendants had 
done something unlawful which had caused damage to the 
plaintiff. There were thus two proceedings for conspiracy so 
called -^ and it is to be inferred that a combination to do acts 
which, for an individual, were not unlawful, could not, at all 
events, have been the subject of an action on the case. As crim- 
inal conspiracy became enlarged in its scope and generalized 

* Skinner v. Gunton, i. Williams, Saunders, p. 229. Saville v. Roberts, 1698, 
Lord Raymond, 374. " Where two cause a man to be indicted, if it be false and 
malicious, he shall have Conspiracy, where one, he shall have Case." 



No. 15.] DISPUTES AND COMBINATIONS. 133 

so as to include combinations to commit any crime, civil pro- 
ceedings for the same kept pace; and henceforward for either 
purpose, civil or criminal, conspiracy (whether or not it in- 
volves proof of malice — a question afterwards to be considered) 
has altogether lost its association with the particular and 
specially odious offence of conspiracy as defined by the ancient 
Ordinance (which could only be committed false et malitiose ^), 
and, though still an evil-sounding name, now means nothing 
more than preconcert ^ or combination. In course of time 
the practice was modified; and to judge from Gregory v. Duke 
of Brunswick the usage had by that time, 1843, come to be 
that the two modes of proceeding above mentioned were in some 
way combined as alternatives under the same pleadings, the ap- 
peal of the plaintiff in that case being on the ground that the 
judge had treated the action exclusively as one of conspiracy 
and had accordingly directed the jury that they could not find 
a verdict against one only, whereas if the plaintiff had thought 
fit to prove, if he could, that hissing maliciously was by law 
a tort for an individual, the case might have been treated as an 
action on the case for a simple tort, in which event the verdict 
might have been against one. 

At a still later date it would appear that the " proper " 
action for conspiracy had fallen altogether into abeyance, the 
action on the case alone remaining. So at least it may be 
inferred from the observations of the Judges in Salaman v, 
Warner, an action tried in 1891 for conspiracy in alleged mis- 
feasance in floating a company. 

Mr. Justice Day. — I at once, speaking for myself, disavow the term 
conspiracy in having any legal efficacy on the civil side of our courts. 
The term conspiracy is a well-understood term on the Crown side, but 
there is no remedy that I am aware of obtainable on the civil side in 
respect of conspirators other than that which you can obtain against 

^ The real modem representative of the ancient action for conspiracy is the 
action for mahcious prosecution, whilst actions for slander of title remain as in- 
stances of survivals of ancient actions on the case like those in the nature of 
conspiracy (Ratcliffe v. Evans, 1892, 2 Q. B. 52A). In both these cases it is to 
be noted the plaintiff has to prove malice. (See Stephen on malicious prosecu- 
tion.) 

2 "Conspire is nothing; agreement is the thing." Per Lord Campbell in 
R. V. Hamp, 1852, 6 Cox 167 ; also Kearney v. Lloyd. 



134 STATISTICS OF LABOR. [Pub. Doc. 

each individual member of the conspiracy. It must be shown here, not 
that there is a conspiracy or a combination, but it must be shown by 
the plaintiff that the defendants — whether one of them or two of 
them or more than two of them, whether m combination or not, is 
utterly immaterial — have infringed some legal right which he had. 

Lord Esher. — It is not true to say that a civil action could be 
brought for a conspiracy. If persons conspired to do an illegal thing 
or to do a legal thing in an illegal way, they are liable to an indictment 
and not to an action. They are only liable to an action if they con- 
spired to do something against the rights of the plaintiffs, and have 
effected their purpose and committed a breach of those rights. The 
plaintiff therefore must show that the conspiracy was to injure those 
rights and that those rights had been injured. He has in fact to carry 
his case as far as if there had been no conspiracy at all. The fact of 
there having been a conspiracy did not increase his right of action in 
the least, though it did not diminish it. 

Frye, J. — I propose to say nothing upon the question as to whether 
an action will lie for injury resulting to the plaintiff from an act done 
by several persons, assuming that that act could have been lawful if 
done by one but is unlawful if done by several as the result of a com- 
bination between them. 

The importance of these observations to the present discussion 
is that Mr. Justice Day and Lord Esher, by absolutely denying 
the necessity, in any case, of proof of conspiracy, evidently did 
not recognize that a combination to injure (in the sense of a 
combination to do something which for an individual is not 
unlawful) was a criminal conspiracy, for otherwise there would 
have been a criminal conspiracy for which persons injured 
thereby could obtain no civil redress.-^ 

In R. V. Parnell — a case of political boycotting tried in 
1881, — Mr. Justice (afterwards Lord Justice) Fitzgerald ex- 
pounded the law of Conspiracy to the Jury. He repeated to 
them the usual definition of Conspiracy, and under the third of 
the divisions into which he divided his subject he placed Con- 
spiracy where two men agree to do an injury to a third party 
as a class, though that injury if done by one alone of his own 
motion could not be in him a crime or an offence, but could 
be simply an injury carrying with it a right to a civil remedy. 

^ Lord Esher, it is known from his judgments in Bowen v. Hall and other 
Cases, held the opinion that for an individual to do a lawful act with malice was 
to commit a tort. 



No. 15.] DISPUTES AND COMBINATIONS. 135 

And he states the reason. When done by one alone it is but 
a civil injury, but it assumes a punishable or aggravated char- 
acter when it is to be effected by the power of combination; 
and it is justly so because, though you may assert your rights 
against one individual, how can you defend your rights against 
a number of persons combined to inflict a wrong upon you ? 
At the same time he referred to R. v. Druitt as not inaptly 
illustrating this class of Conspiracy, but that was the case of 
a combination to do what for an individual was not unlawful. 
He also quoted from Archbold's Criminal Law the proposition 
that a Conspiracy is an agreement of two or more wrongfully 
to injure a third person or injure any body of persons. In 
specifying the different kinds of Conspiracy Fitzgerald, J., did 
not name a Conspiracy to do that which is intentionally hurtful, 
but not unlawful. 

To proceed now to the series of civil cases in which the 
question whether a combination to do what is not unlawful for 
an individual can be a criminal conspiracy has been directly 
raised. The question was for the first time thoroughly dis- 
cussed in Kearney v. Lloyd, an action of conspiracy tried in 
the Irish courts in 1891, during the interval between the decision 
of the Court of Appeal and that of the House of Lords in 
the Mogul case — at a time, therefore, when the judgment of 
the Lord Chancellor and Lord Esher in Bowen v. Hall, that 
malice made unlawful an act otherwise lawful, was still in 
force. The action was by an incumbent against his parishioners 
for conspiring to injure him by refusing to subscribe to a 
sustentation fund. The case having been argued and the Jury 
having answered the questions put them, the Judge (Andrews, 
J.) abstained from giving judgment on the cause of action for 
conspiracy, and left the parties to move for such judgment as 
they might be advised. Defendants obtained a conditional order 
to enter judgment for themselves, the plaintiff showed cause, and 
the legal point was argued before Palles, C. B. In an elaborate 
judgment he came to the unhesitating conclusion that there 
could be no criminal conspiracy, and therefore no action for 
criminal conspiracy, unless the act agreed to be done amounted 
to a civil wrong when done by individuals — in other words, 
that there was no such misdemeanor as a conspiracy to injure. 



136 ; STATISTICS OF LABOK. [Pub. Doc. 

He reserved, however, the question whether this doctrine was 
applicable to cases of combination in restraint of trade. 

Then came the Mogul case, an action of conspiracy against 
merchants who by underselling and exclusive dealing had com- 
bined to drive a competitor out of the market, which was adju- 
dicated by the House of Lords in 1892. It might at first sight 
seem that it must have involved the question whether a com- 
bination to injure by acts not amounting to legal wrongs might 
be a conspiracy, but it did not, I think, conclusively determine 
it in either way; in fact it has been appealed to from both 
sides. According to Lord Bowen's judgment in the Court of 
Appeal — which was generally praised in the House of Lords, 
and which, it is to be remembered, was delivered when Bowen 
V. Hall was still an authority binding on the Court — the 
answer would appear to be in the negative. For he, quoting the 
ordinary definition of Conspiracy, viz., a combination to do an 
unlawful act or a lawful act by unlawful means, held that what 
was forbidden by the law was the same for individuals and 
for combinations, viz., to do an intentional act of harm without 
just cause or excuse, and the same view was taken by the House 
of Lords so far, at least, as the case of competition between trad- 
ers was concerned. But the Law-lords did not all consider the 
case from one point of view. Some treated it as if the con- 
spiracy charged was a combination to commit a tort and asked 
where was the tort or the right violated. Others, including 
Lords Bramwell, Field and Hannen, as if the conspiracy charged 
was a combination to injure, assumed that such might be a 
conspiracy, but insisted on the absence in, the case before them 
of malice, which seemed to be a necessary ingredient in a con- 
spiracy of that sort. But they all unanimously agreed that 
what the defendants had done was without bad motive and was 
justified by competition. The case, at all events, is an authority 
that if the law recognizes a conspiracy to injure, it also recognizes 
competition as a just cause or excuse. 

The Scottish Fleshers case, which closely followed, may be 
considered to have been similarly decided. 

Temperton v. Bussell was a trade union case tried in 1893 
in the interval between the Mogul case and Allen v. Flood — at 
a time, therefore, when Lord Esher's judgment in Bowen v. 



No. 15.] DISPUTES AND COMBINATIONS. 137 

Hall had not yet been over-ruled. The action was for combining 
to injure by preventing contracts from being entered into, and 
proof was given that the defendants had not acted from any 
personal malice. The Court of Appeal, presided over by Lord 
Esher, on the authority of Gregory v. Duke of Brunswick, but 
without much discussion, and without any reference to Kearney 
V. Lloyd or to the Statute of 1875, held that there had been 
combination with a bad motive to prevent contracts being entered 
into, and that this was a criminal conspiracy for which, if it 
caused damage, an action would lie. This is the earliest in- 
stance on record of a civil action for conspiracy to injure being 
successful. It is an authority that the law recognizes a combina- 
tion to injure, but requires a motive of some bad kind to be 
proved. 

Allen V. Flood decided in 1897 was originally an action of 
conspiracy brought against Allen, a delegate, and officers of a 
Trade Union, but as finally adjudicated was an action of tort 
against Allen as sole defendant. The jury found a verdict that 
Allen had maliciously induced the Glengall Company not to en- 
gage the plaintiffs, and they did this after having been warned 
by the judge that to find such a verdict it was necessary for 
them to be satisfied that the defendant had acted with a mali- 
cious intention, that is, not for the purpose of forwarding that 
which he believed to be his interest as a delegate of the Union 
in the fair consideration of that interest, but for the purpose 
of injuring the plaintiffs and preventing them from doing what 
each of them was entitled to do. Mr. Justice Kennedy gave 
judgment against Allen, and the Court of Appeal affirmed his 
decision. The case went up to the House of Lords before 
whom it was most elaborately argued, and the Judges were 
called in for their opinion. The majority of the Judges 
(amongst whom was Lord Brampton then Mr. Justice Hawkins) 
and three of the Law Lords (including the Lord Chancellor) 
considered that the decision of the Court of Appeal should be 
upheld, being of opinion that the acts of the defendant con- 
stituted intimidation, coercion, and a malicious infringement 
of the rights of the plaintiffs and their employers to carry on 
their business as they thought fit. Amongst other authorities 
they quoted the passage from p. Ixix of Sir W. Erie's Memo- 



138 STATISTICS OF LABOR. [Pub. Doc. 

randum. But the majority of the Law Lords reversed the 
decision of the Court of Appeal; they held that there had 
been no intimidation and no coercion, that no right had been 
infringed, and in short that no cause of action had been 
shown. With respect to acts of individuals with which alone 
the case was concerned, they laid down two propositions ap- 
parently of general application: (1) That malice (bad motive 
of some sort) cannot make unlawful any act — including there- 
fore any intentional act of harm — which is otherwise lawful. 
In this they reaffirmed the law as declared in 1853 in the case 
of Stevenson v. ISTewnham and over-ruled the judgments of 
Selborne, L.C., and Lord Esher in Bowen v. Hall. (2) That 
traders have no privileged right to protection for their trade; 
they have only the right which everybody possesses in respect of 
what he is at liberty to do, viz., the right to legal protection from 
interference by unlawful acts. This was understood to negative 
the doctrine that had been put forward by Sir W. Erle.^ 

The effect of these pronouncements upon the law of con- 
spiracy to injure was not considered by the House of Lords, 
and was by some of the Law Lords, including Lord Herschell and 
Lord Macnaghten, expressly reserved. But one consequence is 
obvious, viz., if a combination to injure was a criminal con- 
spiracy, it was — even if done with a bad motive, or done to a 
trader's business — a conspiracy to do what in the case of in- 
dividuals was neither an offence nor a tort. The question 
remained whether such a combination was a criminal conspiracy. 

Boots V. Grundy, heard in 1900 (after Leathem v. Craig had 
been decided in the Irish courts), was an action against Traders 
for combining to injure their rivals by inducing wholesale 
traders not to deal with their purveyors. The court, on the 
strength of the Mogul case and Kearney v. Lloyd, negatived 
the doctrine that combination to injure was a criminal con- 
spiracy, but Mr. Justice Phillimore, who dissented from the 
decision of the court, carefully reviewed the principal cases 
relating to conspiracy to injure, and came to a conclusion which 
differed from that of Kearney v. Lloyd, and was to the effect 
that whilst, according to Allen v. Klood, malice was immaterial 
in the case of acts of individuals, it might make all the difference 

^ O'Brien, J., in Leathem v. Craig, 1898, Irish Rep. Q. B. 688. 



No. 15.] DISPUTES AND COMBINATIONS. 139 

in cases of conspiracy. In the course of his judgment he ob- 
served that the language of the judges who charged the jury 
in R. V. Parnell, 14 Cox C. C. 508, was, with regard to their 
third division of the crime of conspiracy, hesitating and varying, 
and that even the same might be said of the judgment of Bowen, 
L.J., in the Mogul case. Sometimes the learned judges spoke 
in the most general language of any combination to do any form 
of injury and sometimes they seemed to speak of combinations 
to commit actionable wrongs. But the observations of Lords 
Bramwell, Hannen and Field when deciding the Mogul case in 
the House of Lords and the reservation of Lords Herschell 
and Macnaghten when giving their decision in Allen v. Flood 
led him to conclude that they recognized the wider view of 
conspiracy taken in the older cases. 

Lastly Quinn v. Leathem, decided in 1901, was an action for 
tort and conspiracy brought against Trade Unionists for their 
conduct on Strike. The Jury, after a warning from the Judge 
similar to that in Allen v. Flood, had found a similar verdict, 
viz., That the defendants had maliciously induced the customers 
and servants of the Plaintiff to refuse to deal with the Plaintiff 
and had maliciously conspired to induce the Plaintiff's custom- 
ers and servants not to deal with the Plaintiff or continue in his 
service. The legal questions raised were whether the proposi- 
tions laid down in Allen v. Flood prevented the conduct of the 
defendants from being considered a tort or a conspiracy to 
commit a tort, and if not whether the law recognized a con- 
spiracy to injure, viz., a conspiracy to do something intentionally 
hurtful but not unlawful. 

In dealing with the case before them the Lord Chancellor, 
Lord Brampton, and the other Law-lords distinguished Allen 
V. Flood not only as relating exclusively to acts of individuals, 
but because of the difference of the facts or rather of '^ the 
hypothesis of the facts " on which the adjudication of that case 
had been made: and the Lord Chancellor propounded reasons 
of a general_ character why the judgment in Allen v. Flood 
should be interpreted with strict reference to that hypothesis 
and ought not to be pushed to what might seem its logical con- 
sequences in other cases. In result, Allen v. Flood was recog- 
nized as establishing the general proposition that in case of acts 



140 STATISTICS OF LABOR. [Pub. Doc. 

done by individuals motive could not make unlawful what was 
otherwise lawful, but the same proposition was not extended to 
combinations. On the other hand the decision in Allen v. Flood 
having been that under the circumstances of the case no right 
of the Plaintiffs had been infringed, effect was not given in 
Quinn v. Leathern to the second proposition put forward in 
Allen V. Flood, viz., that a person in respect of what he is at 
liberty to do is not entitled to legal protection from interference 
save so far as the interference consists in unlawful acts. Some 
of the Law-lords, in particular Lord Brampton and Lord 
Lindley, insisted that the liberty of action possessed by every 
man to follow his calling as he thinks fit constitutes a legal 
right which would be infringed by any interference which was 
unjustifiable though not in itself unlawful, and Lord Brampton 
quoted again, what he had quoted before in Allen v. Flood, 
the Extract from page Ixix. of Sir W. Erie's Memorandum 
as to the trader's right, adding that he was not aware that 
the rights so stated had ever been seriously questioned. Some 
of the Law-lords also held that the threats of a Strike which 
had been used were intimidation. But their Lordships were 
unanimous that there was a Conspiracy; this Conspiracy how- 
ever was according to some of the Law-lords a Conspiracy to 
commit a tort, according to others a Conspiracy to injure. 
The subject of Conspiracy to injure is glanced at by Lord 
Brampton, but is discussed by Lord Macnaghten alone and by 
him with extreme brevity : he does not define the Conspiracy, but 
merely states that such a Conspiracy is known to the law, and, 
as authorities for this statement, he names the cases noticed above 
in this Memorandum, viz.', Gregory v. Duke of Brunswick: B. 
V. Rowlands : B. v. Parnell : the Mogul case : and Temperton v. 
Bussell: also the judgments in Leathem v. Craig of Andrews, 
J., and Holmes, L.J. The House of Lords upheld the decision 
in Temperton v. Russell. 

At the same time, with reference to the Act of 1875 they held 
that Sec. 3, in forbidding criminal proceedings for such a con- 
spiracy in trade disputes, left civil liability untouched. In 
consequence, workmen and others in trade disputes may be made 
civilly liable for a conspiracy to injure, although in their case 
such a conspiracy is not indictable as a criminal conspiracy. 



No. 15.] DISPUTES AND COMBINATIONS. 141 

It is not necessary to follow the cases which, have since taken 
place. The co-existence of these two judgments, Allen v. Flood 
and Quinn v. Leathern, both of supreme authority, as proceeding 
from the House of Lords, and both, therefore, in theory at least, 
unalterable, save by the act of the Legislature, has created a 
legal situation which is bound to produce contradiction and 
uncertainty. 

Starting now from the declaration in Quinn v. Leathem that 
a conspiracy to injure is known to the law, I will endeavor to 
show that an action for such conspiracy presents peculiar 
anomalies, and in case of trade disputes produces special hard- 
ships. 

Common Law offences have no exact definition; it therefore 
avails little to lay stress upon the fact that Conspiracy to injure 
lies quite outside the bounds ascribed to Conspiracy by Mr. 
Justice Willes in 1868, when summoned with other Judges 
to expound the law to the House of Lords in the important case 
of Mulcahy v. Eeg, 18 L. K. 3 H. L. 317. 

A conspiracy consists not merely in the intention of two or more, 
but in the agreement of two or more, to do an unlawful act or to do a 
lawful act by unlawful means. 

After all, the great solecism of a Conspiracy to injure — a 
criminal offence involving civil liability for any damages that 
may ensue — is that it is a combination to do acts that are not 
unlawful. This solecism is aggravated by reason of the legal 
acts forbidden to combinations being unspecified; they are not 
of course specified in any Statute, but neither are they clearly 
indicated by the description usually given to them of acts of 
intentional harm done in combination. 

Seeing that Conspiracy means no more than agreement carry- 
ing with it no sinister significance, seeing also that it is im- 
possible that an agreement to do any thing of any kind can 
constitute a criminal Conspiracy, it is plain that the criminality'' 
of a Conspiracy — in the case where the aggravation from 
numbers is the leading consideration, no less than in other 
cases — must be derived from the acts agreed to be done pos- 
sessing that character — whatever it may be — which the law 
requires them to possess in order that the agreement to do 



142 STATISTICS OF LABOR. [Pub. Doc. 

them may he a criminal Conspiracy (such criminality to begin 
so soon as the agreement has been entered into). This is 
obviously the case with a Conspiracy to commit a crime, and 
with a Conspiracy to commit a tort, but it is equally so with 
the so-called Conspiracy to injure. It is, however, difficult to 
see how in this connection the description '^ acts of intentional 
harm '' marks off a specific class of acts. For the acts must be 
harmful, else there could be no claim for damages, and the 
harm must be intentional, for there can be no such thing as an 
agreement to do harm accidentally. The description then is 
no limit at all. 

But there must be some limit. It may be suggested that 
'' without just cause or excuse " is a limit. Conspiracy to injure 
being described as a combination to do without just cause or 
excuse intentional acts of harm which for individuals are not 
unlawful. But this cannot be so. The theory of a civil action 
is for the plaintiff to allege that the defendant has done to him 
what is recognized by the law to be a prima facie tort or wrong : 
it is then for the defendant to deny that it is by law a prima facie 
tort, or, admitting it, to submit some specific circumstance on 
which he relies as constituting by law a just cause or excuse; 
and the plaintiff cannot succeed unless he has disposed of what 
has thus been submitted by the defendant, that is, he must 
show either that the alleged circumstance is not recognized by 
the law to be a just cause or excuse, or that, as a matter of 
fact, it does not exist. There is no prima facie tort known to 
the law which is not theoretically liable to be met by proof of 
some just cause or other ; and from this point of view any 
tort whatever might be, though as a fact none is,-"^ described as 
being without just cause or excuse, in the sense that if the case 
is defended the plaintiff has to refute what is offered as just 
cause or excuse, or if the case is undefended it is to be assumed 
that there is no just cause or excuse. It is thus plain that in 
a description of conspiracy to injure the words '^ without just 
cause or excuse " do not form part of the prima facie tort. 
Just cause or excuse is for the defendant to offer, if he thinks 

^ An exception to this is what may be called the recently established tort of 
inducing breach of contract, which although involved in Lumley v. Gye was not 
fully recognized until that case was explained by Quinn v. Leathern. 



No. 15.] DISPUTES AND COMBINATIONS. 143 

fit, and only so is the plaintiff under an obligation to show 
that there is none. This distinction is important as fixing what 
is the prima facie tort of a conspiracy to injure — that which 
the plaintiff has in the first instance to show, and on which he 
is entitled to have a verdict if the defendants put in no defence. 
The prima facie tort of a conspiracy to injure, then, is not 
that the defendants conspired to do acts of intentional harm 
unjustifiahly , but simply that they conspired to do acts of 
intentional harm.^ Now if it be borne in mind that the act 
may be of any kind so long as it is one of intentional harm ; that 
the word harm means harm of any kind ; ^ that intention to do 
harm does not imply on the part of the doer any malice in the 
sense of ill-will or bad motive of any kind; that the word con- 
spiracy is a neutral word merely meaning pre-concert, and that 
two are enough to form a conspiracy, it will be seen how 
indefinite and sweeping is a conspiracy to injure. And it is a 
criminal offence, and in the event of damages ensuing, a tort. 
If the law had been enforced, it would have been expected that 
such an offence, such a tort, would have been found to be every- 
day occurrences in society; but, as a fact, the cases have been 
very rare, and have mostly arisen out of trade disputes between 
employers and workmen. 

But malice, — in the sense of ill-will or other bad motive, — 
is not that a necessary part of the prima facie tort of a Con- 
spiracy to injure ? and, if so, does it not furnish the requisite 
limit ? Were this the case, it would be only one solecism the 
more. Malice, in the case of individuals, does not make unlaw- 
ful what without malice is lawful: and by an ail-but universal 
rule ^ malice is not an element in a tort by an individual. The 
question in an action of law being whether the Plaintiff has suf- 
fered any legal wrong, the presence of malice has not to be 
proved by the plaintiff, and the absence of malice is not a just 
cause or excuse for the defendant : nor would proof of malice 
negative the existence of anything which is otherwise good cause 

^ This is stated expressly by Lord Brampton in Quinn v. Leathern. 

2 Sir "William Erie, speaking of threats of evil, says, " Evil may be inflicted in 
respect of the manifold interests relating to person, property, reputation, or affec- 
tion." 

^ Throughout these observations I abstain from referring to the special cases 
of action for defamation and action for malicious prosecution. 



144 STATISTICS OF LABOR. [Pub. Doc. 

or excuse and is compatible with it. Malice in short is imma- 
terial. It is true that the pleadings in these, as in other cases, 
usually contain the word ^' maliciously." The common aver- 
ment is that the defendant did " maliciously," etc. But the 
word so used refers to legal malice, and has nothing to do with 
malice in the sense of bad motive. Its legal significance is now 
undisputed. It merely anticipates and by anticipation repels 
whatever, if anything, may afterwards be brought forward by 
the defendant, which, if proved, would be a sufficient defence. 
(See the judgment of Lord Bowen in the Mogul case, the 
opinions of Willes, J., and Wright, J., in Allen v. Flood; and 
the judgment of Phillimore, J., in Boots v. Grundy.) The 
adverb ^' maliciously " is thus a mode of formal negation be- 
forehand of the existence of any just cause or excuse whatever, 
or, which is the same thing, a general averment that what has 
been done to him by the defendant was wrongful. '^ Mali- 
ciously," therefore, adds nothing to what the plaintiff has to 
prove. For of course if the act of the defendant could not be 
shown to be wrongful, there could be no cause of action; and, 
as already stated, in order to succeed, the plaintiff has in any 
event to prove the prima facie tort, and also to disprove what- 
ever the defendants offer as just cause or excuse. 

Most judges, however, express the opinion,^ though often 
in vague language, that in a conspiracy to injure there must be 
malus animus. And accordingly the practice in these cases as 
distinguished from others — a practice commenced whilst the 
decision in Bowen v. Hall that what was lawful became unlawful 
if done with malice was in force, and continued since that 
decision was overruled in Allen v. Flood — seems to be that 
the judges lay stress upon the word " maliciously," if found, 
as it generally is, in the pleadings, and in putting the questions 
to the ury, they are careful to use the word maliciously : ^ also 
in charging the Jury they usually direct them that in order 

^ e.g. Henn Collins, M.R., in McElrea v. United Society of Drillers : Coleridge, 
C.J., in the Mogul case. 21 Q.B., D. 549. 

^ See observations of Lord W^atson on this practice in pp. 92, 93 of the report 
of Allen V. Flood which at the time of the questions being put to the Jury was 
an action for conspiracy, though when the case was considered by Lord Watson, 
it had been reduced to an action of tort by an individual. 



No. 15.] DISPUTES AND COMBINATIONS. ' 145 

to satisfy the word " maliciously " they must find that the 
defendants did not act merely from self-interest, but were 
actuated by some bad motive. At the same time — at all 
events when the plea of competition is entertained — the Judges 
repudiate the notion that it is incumbent upon the Court to 
regard the transaction from its moral aspect.^ All judges,^ 
however, do not hold the view that malice in the sense of bad 
motive is a necessary element in conspiracy. Lord Bowen in 
his judgment in the Mogul case — which is always praised 
and has never been overruled, though in some respects it must 
be considered of doubtful validity — held that to individuals 
and to combinations alike it was forbidden to do malicious 
wrongs ; but the malice in the malicious wrong described by him 
was not malice in the sense of bad motive, but only legal malice. 
He says : — 

Intentionally to do that which is calculated in the ordinary course of 
-events to damage and does in effect damage another in that person's 
property or trade is actionable if done without just cause or excuse, 
and that such intentional action when done without just cause or excuse 
is what the law calls a malicious injury. 

Indeed Lord Bowen does not even mention the word malice 
in the sense of bad motive. Nevertheless under Lord Bowen's 
Tuling the question of malice in the sense of bad motive in- 
evitably comes in only in a different form at a later stage, when 
the question of just cause or excuse has to be considered. Just 
cause or excuse, he says : 

^ " It is absolutely unnecessary to consider whether those grounds were morally 
or commercially justifiable. They were not unlawful," per Lord Field in the 
Mogul case, p. 54, and see observations of Fry L.J. in the same case, 23 Q.B.D. 
625 ; and Lord Coleridge in Gibson v. Lawson. 

^ In the very recent case of the Glamorganshire Coal Co. v. The South Wales 
Miners' Confederation Vaughan Williams L. J. observed that the Plaintiff in a 
suit of conspiracy was under no obligation to prove malice in the first instance, 
though he was at liberty to prove it to rebut justification. Lord Lindley — 
so I infer from his judgment in the House of Lords in the same case — does not 
concur in this view. But it is remarkable that Lord Lindley and Lord James of 
Hereford both stated that in that case it was not necessary to prove malice, and 
Lord Lindley recommended the disuse in similar cases of that word altogether. 
That case it is true was a conspiracy to commit a tort (the tort of inducing breach 
of contract), not a conspiracy to injure. But until Quinn v. Leathem a con- 
spiracy to induce breach of contract had been treated as a conspiracy to injure, 
and in both cases the use of the word " Malicious " was similar. 



146 STATISTICS OF LABOR. [Pub. Doc. 

Could not exist when the act was done merely with the intention of 
causing temporal harm without reference to one's lawful gain or the 
lawful enjoyment of one's own rights. The good sense of the tribunal 
which has to decide would have to analyze the circumstances, and to 
discover on which side of the line the case fell. 

Tims, either way, motive comes to be considered. The prac- 
tical result is that, in all cases of conspiracy to injure if malice 
is an element of the tort, and in all defended cases if it is 
only to be used as an answer to the plea of just cause and 
excuse, the issue is made to turn on the motive, on the question 
of malice — just that which in cases of acts done by individ- 
uals is, since Allen v. Elood, immaterial. AVhat, however, malice 
means is only to be gathered from numerous judgments wherein 
the judges have placed very various interpretations upon the 
word, and the result is vague and uncertain. Lord Esher de- 
clined to define malice, and said it was a question for the jury. 

Then as to justification. The general law is that what con- 
stitutes just cause or excuse is a matter determined by law, 
and in strictness is for the Judge, as distinguished from the 
Jury, to decide according^to law. It would revolutionize the law 
if the defendant when sued for commission of a legal wrong 
might plead merely moral justification, and a judge and jury 
were bound or even at liberty to accept it. I may add that in 
no case, so far as I am aware, is the plea of mere self-interest — 
as distinct from that of a right — on the part of the defendant 
recognized by law as a just cause or excuse. But in the case 
of conspiracy to injure the practice is different. As the prima 
facie tort is indefinite, so is the justification. With one ex- 
ception, there is nothing settled as to what shall constitute 
justification. That exception is competition. Otherwise the 
justification required is what the judges and jury may think 
in their discretion amounts to justification; in other words, it 
is moral justification. The consequence is that on the one hand 
such a defence as self-interest on the part of the defendant may 
be taken into consideration (though in Trade Union cases at 
least it has rarely been accepted as just cause or excuse), and on 
the other the proof of malice or bad motive of some sort, being 
incompatible with moral justification, is said to negative th& 



Xo. 15.] DISPUTES AND COMBINATIONS. 147 

existence of any jnst canse or excuse whatever.^ The upshot 
of the whole is that the law of Conspiracy to injure, as recog- 
nized in Quinn v. Leathern, places it in the power of a Judge 
and Jury, if in their discretion they should so think fit, to treat 
any joint conduct whatever as actionable and, except so far as 
barred by the Act of 1875, criminal. 

That by this law workmen engaged in a trade dispute are 
placed at a special disadvantage cannot be doubted. It is only 
necessary to realize the course of an action of conspiracy to 
injure brought against workmen for their conduct with ref- 
erence to a strike. For the " injurious act " one may take at 
random any act done in the promotion of a strike — such as 
an announcing of the strike to the employer, or an inducing by 
persuasion, or payment, but not intimidation of workmen to 
leave the employer's service (without breach of contract), or 
not to enter it, or the starting of a secondary strike. These 
acts are assumed to be not forbidden to individuals by the 
law, whether criminal or civil. (It is true there are dicta that 
they are forbidden: but if they are forbidden, then it is man- 
ifest that a legal strike is an impossibility.) But the plaintiff 
can have no difficulty in making out a prima facie tort. A 
strike being an industrial war, there are present of necessity 
all the elements of a conspiracy to injure, viz. : harm, intention 
to do harm, combination to do harm. For justification the 
defendants have nothing to offer but the plea of seK-interest. 
To rebut this (or, if such is the law, to complete the proof 
of a prima facie tort) the plaintiff alleges bad motive. This 
too can never be wanting. For every strike, every act of every 
strike, is necessarily a hostile operation, the strikers have always 
the object to force the employer to change his mode of busi- 
ness — just as the employer's object is to force upon the work- 
men terms of their employment — and this is regarded by the 
law as an evil motive.^ Then the question is put to the jury: 
" Did the defendants act from the motive to do harm to others 



^ This, notwithstanding the similarity of terms, is not to be confounded with 
the allegation of legal malice in the pleadings which is a general and formal 
denial, in anticipation, of any just cause or excuse that may be brought forward. 

^ R. V. Rowlands and R. v. Bunn, both of which must after Quinn v. Leathern 
be considered to be still good law. 



148 STATISTICS OF LABOR. [Pub. Doc. 

or from the motive to benefit themselves ? Or did they act 
more from the one motive than from the other V^ A question 
as difficult to answer as v^ould be a question concerning a soldier 
who, after taking aim, fired off his rifle in time of battle, 
whether his predominant motive was to help his country or 
hurt his enemy. But the jury have to find an answer, and 
this answer can hardly fail to be unfavorable. 'Not to speak 
of their probably not including in their number any working 
man, nor .to impute to them the common bias of assuming all 
strikers to be disturbers of industry and insurgents against 
lawful authority, nor to suppose that in matters of political 
economy they are prejudiced in favor of the theory of in- 
dividualism and opposed to that of collective action, the Jury 
will have presented to them the picture of strikers angry and 
excited, and of the loss and distress which are the visible and 
immediate consequences of a strike and have been intentionally 
caused by the strikers; and when the question is thus put to 
them, it would be strange indeed if they did not attribute the 
intentional acts of the strikers rather to a desire to inflict 
these evils than to the hope of advantages to be obtained if 
the strike is successful — advantages unseen, remote, and a 
matter of indifference to the Jury. The truth, nevertheless, 
Trade Unionists would urge, is the contrary. In a' strike, as in 
trade competition, there may be, in most cases there probably 
is, ill-feeling on both sides, at all events after the strike has 
gone on for some time, but no strike was ever either commenced 
or maintained out of spite to master or man, any more than 
a lockout was ever declared by employers to spite the employed. 
Workmen strike, and employers lockout, for their own pro- 
spective advantage ; otherwise they would not care to lose their 
wages or their trade. Moreover, in every organized trade a 
strike is simply a matter of policy for the Trade Union. It 
was so in the case of Quinn v. Leathern. The proceedings 
taken against Leathem and Munce were the application to them 
of the general rule which the Trade Union had adopted two 
months before as their future policy, that members of the 
Trade Union should not work for butchers who themselves 
employed non-Unionists, or who, whilst themselves not employ- 
ing non-Unionists, bought their meat from other butchers who 
did. 



No. 15.] DISPUTES AND COMBINATIONS. 149 

The indefiniteness of the law of conspiracy to injure prevents 
it from being a practical guide of conduct to workmen as to 
what they may do in times of strike and what they must avoid. 
The mere fact that two make a conspiracy is enough in the 
case of unwritten law to produce confusion, where unspecified 
acts, lawful for individuals, are to be made unlawful when done 
in combination. But the law itself is unintelligible to work- 
men. The defendants in Quinn v. Leathern, after judgment 
had been given against them, must presumably have been at 
loss to understand which in particular of the acts done by 
them it was that, though not unlawful for individuals, was 
condemned as unlawful to be done in combination, or in what 
respect their strike differed from an ordinary strike against 
individual non-Unionists. They could only know that, review- 
ing their conduct as a whole, the House of Lords had pro- 
nounced their combination to be an oppressive combination, a 
conspiracy to injure. 

The perplexity as to the scope of the law is not confined to 
workmen. I believe it is is no exaggeration to say that a lawyer 
is unable to advise a Trade Union with any confidence on ele- 
mentary points connected with a strike and with public order — 
as, for instance, whether it is actionable for a committee or for 
two or more workmen acting together to organize a strike against 
non-Unionists at all; or to threaten an employer with a strike; 
or to j)i'ompt a strike to workmen not predisposed to strike; or 
when the strike has been once started to persuade other work- 
men to join it, and especially to persuade men in the service 
of the employer to leave that service, or workmen in the service 
of employers in other trades to strike in sympathy. 

For these reasons it appears to me that the law of conspiracy 
to injure is a law unfitted for workmen in case of Trade Dis- 
putes. 

It only remains briefly to consider whether to make the 
change in the law as proposed by the Report would be to 
license practices which ought to be repressed by the law. The 
change proposed is. to enact : — 

An agreement or combination by two or more persons to do or pro- 
cure to be done any act in contemplation or furtherance of a trade 
dispute shall not be the ground of a civil action unless the agreement 



150 STATISTICS OF LABOR. [Pub. Doc. 

or combination is indictable as a conspiracy notwithstanding the terms 
of the Conspiracy and Protection of Property Act, 1875. 

The cliief object is to eliminate from trade disputes civil 
actions for conspiracy to injure. But to understand the effect 
of the words used it is necessary to bear in mind that an offence 
causing damage is a tort, and that actions for a tort would not 
be interfered with by the enactment. Trade Unionists remain, 
of course, subject to the ordinary law of torts, and I may add 
that, by Quinn v. Leathem explaining Lumley v. Gye, inducing 
breach of contract is now a recognized tort. They are also 
subject to the ordinary criminal law, in particular, I may 
mention, to the law against riot and breach of the peace, and to 
the provisions of Sec. 7 of the Act of 1875, which, though nom- 
inally of general application, practically deals with offences of 
molestation only likely to occur in case of Trade Disputes. If 
there is anything more which ought to be prohibited, this could 
be effected by adding either to the reservations in Section 3 of 
the Act of 1875 or to the list of offences in Section 7. The 
prohibition would thus be enacted after discussion on the merits, 
and being recorded in a Statute would be intelligible to work- 
men and their advisers. Then, as to the probable practical con- 
sequences of the suggested enactment. On this point much 
may be learned from the action of Parliament in 1871 with 
regard to restrictions upon criminal proceedings for conspiracy 
in Trade Disputes (civil proceedings for damages caused by 
the same offence not being at that time under contemplation). 
The Criminal Law Amendment Act of that year, after creating 
a number of offences in the nature of acts of molestation or 
coercion which, were likely to be committed in times of Trade 
Disputes and correspond to the offences in Sec. 7 of the super- 
sjeding Act of 1875, contained a proviso that — 

No person shall be held liable for doing or conspiring to do any act 
on the ground that such act restrains or tends to restrain the free 
course of trade, unless such act is one of the acts hereinbefore specified 
in this section, and is done with the object of coercing as is herein- 
before mentioned. 

The Act of 1871 is no longer in force, having been super- 
seded by that of 1875, but it was repealed not because it had 



No. 15.] DISPUTES AND COMBINATIONS. 151 

opened tlie door to any disorder or molestation, but because it was 
found not to give protection to workmen against criminal prose- 
cution for such acts of so-called molestation or coercion done in 
combination as Parliament considered ought not to be punishable. 
It is of course impossible here to describe the various hostile 
acts done in times of strike which are not unlawful for in- 
dividuals to doj and which when done in combination would 
be precluded by the proposed enactment from being made the 
subject of civil proceedings for conspiracy to injure, just as 
they have been precluded by the Statute of 1875 from being 
made the subject of criminal proceedings. But perhaps it may 
be well to test the general question by one example to serve 
for all. For this purpose I will take the practice of Trade 
Unionists (wherever the Union is strong enough) to combine to 
refuse to work with non-Unionists, which has and is intended 
to have the result of making it difficult or impossible for non- 
Unionist workmen to find employment. No practice is more 
characteristic of Trade Union policy; none creates more trouble 
to employers; none excites more general repugnance. It is 
always intolerant, and when applied against individuals oper- 
ates as personal persecution.^ But should it be actionable? 
To strike for this purpose is admittedly lawful for individual 
workmen. Should it be unlawful for two or three in combi- 
nation to start or promote such a strike ? Or if prima facie 
unlawful, why may not the plea of competition be accepted ? 
To Trade Unionists non-Unionists are permanent rivals; act- 
ing in their own interests they undersell them in the labor 
market, take the side of the employer against the Unionists 
in time of strike, and if the strike is successful seek to share 
the fruits obtained by the sacrifices of the Unionists. Em- 
ployers again, who are injured by this Trade Union policy, 
may also be said to be permanent rivals of workmen in so far 
as with respect to terms of employment they compete with 
workmen in the labor market, where whatever one party gains 
the other loses. Further, though the law is the same for all, 
it does not, in practice, interfere when the same policy as that 
of Trade Unionists against non-Unionists is pursued by others 

^ See observations of Lord Herschell in Allen v. Flood, p. 131, as to Strikes 
against non-Unionists being alleged to be vindictive. 



152 STATISTICS OF LABOR. [Pub. Doc. 

— by employers who refuse and induce otlier employers to refuse 
employment to Trade Unionist workmen or to those who have 
been prominent in strikes ; ^ or by traders who, as in the Mogul 
case and the Scottish Fleshers' case, merely in their own interest 
combine to exclude rival traders from the market, though, as 
they well know, the consequences may be their ruin. The 
policy of Trade Unions is the subject of the following observa- 
tions by Lord Watson in the case of Allen v. Flood : — 

It is in my opinion the absolute right of every workman to exercise his 
own option with regard to the persons in whose society he will agree 
or continue to work. It may be deplorable that feelings of rivalry 
between different associations of working men should ever run so high 
as to make members of one union seriously object to continue their 
labor in company with members of another Trade Union; but so long 
as they commit no legal wrong or use no means which are illegal they 
are at perfect liberty to act upon their own views. 

But the practical test is this; Would Parliament be willing 
to legislate so as to declare strikes against non-Unionists or 
promotion of such strikes to be an actionable wrong? If not, 
why should it leave in the hands of Judges and Juries the arbi- 
trary power of treating them as actionable, if in their discretion 
they think fit to do so ? 

On a review of the whole matter, I am of opinion that no 
ground exists of public policy or justice to private interests to 
make it necessary that in Trade Disputes conspiracy to injure 
should continue to be a cause of action. 

The proposed enactment as to civil proceedings for con- 
spiracy should be read as one with Sec. 3 of the Act of 1875, 
so as to be qualified by the reservations in that Section. 

In the proposed enactment the words " between Employers 
and Workmen " do not, as in Section 3 of the Act of 1875, 
follow so as to qualify the term " Trade Disputes." The object 
of this omission is that the proposed enactment may apply to 
Strikes against Employers promoted by Workmen not in their 
service, and to secondary Strikes. With this object I entirely 
sympathize, though whether the omission suggested is the best 

^ Bulcock V. St. Anne's Master Builders' Federation. 



No. 15.] DISPUTES AND COMBINATIONS. 153 

way of effecting it may be doubtful. Whatever course is 
taken with the proposed enactment should be followed with 
Section 3 of the Act of 1875. 

Note by Mr, Arthur Cohen, Concurred in by Mr. Sidney 
Webb, to Sir Godfrey Lusliington's Report. 

I entirely agree with the account given by Sir Godfrey Lush- 
ington of the history of the law of conspiracy. In my opinion 
it is consistent with all the statements contained in the Majority 
Report, and indeed goes very strongly to confirm the recom- 
mendations therein contained. It was the vagueness and un- 
certainty of the law of conspiracy which gave rise to the 
legislation of 1875, and the full account given by Sir Godfrey 
Lushington of the more recent dicta, judgments and decisions 
.show in a most striking manner that the law of criminal con- 
spiracy is at the present moment even more vague and un- 
certain than it was in 1875. 

It is to be observed that the Act of 1875 leaves the law as 
to sedition, offences against the Sovereign and the State, unlaw- 
ful assemblies, riots and breaches of the peace wholly untouched, 
and further, that according to our recommendation any person 
who, with a view to coerce another, acts in such a manner as 
to cause reasonable apprehension in the mind of another person 
that violence will be used against him, his wife or family, or 
that injury will be done to his property, will be guilty of a 
criminal offence, and that therefore persons who conspire to 
do such acts will be guilty of criminal conspiracy. If any 
further provisions be required to check the evils resulting from 
oppressive combinations, whether of agitators, workmen, capital- 
ists, or employers, an adequate and proper remedy cannot, in 
my opinion, be found in recent data or decisions which leave it 
wholly undetermined what constitutes an oppressive combina- 
tion or a reasonable justification; it can be obtained only by 
legislative provisions carefully framed for that purpose. 

Minority Report. 

I have the misfortune to dissent from the Recommendations 
which my colleagues have made in the Majority Report, and I 
therefore ask leave to make the following Report : 



154 STATISTICS OF LABOK. [Pub. Doc. 

1. Owing to the dissatisfaction on the part of the Trade 
Unions of workmen with the law as at present declared, we 
were appointed to inquire into the subject of Trade Disputes 
and Trade Combinations, and as to the law affecting them. 

2. The Trade Unions of workmen unanimously refused to 
give evidence before us as to the causes of their dissatisfaction 
with the existing law. 

The representatives of the employers on the other hand gave 
evidence which supported the law as at present declared, though 
in many instances they considered that the law as to " picketing '' 
required strengthening for the better protection of the workmen 
and their families. 

3. The Royal Commission to inquire into the working of the 
Master and Servant Act, 1867, and the Criminal Law Amend- 
ment Act, 1871, found itself in a similarly unfortunate position. 
The Commission, however, took the evidence from the employers 
which was readily given, although the representatives of the 
employed, then as now, refused to come forward to state their 
grievances. 

The following extract from their Report issued in 1875 is 
mstructive : — 

Considering that the discussion on the merits of the Master and 
Servant Act had been mainly brought about by the objections made 
against it by the representatives of the working men, and their com- 
plaints as to its operation, we deemed it highly desirable to have any 
facts brought to our attention on which such objections and complaints 
might be founded. We addressed ourselves to the secretary of the 
London Trade Union Congress Parliamentary Committee as represent- 
ing the interests of the employed, as also to certain associations of em- 
ployers of labor who had volunteered to give evidence of the working 
of the Act, inviting them to furnish us with evidence in relation to the 
Act, and to any complaints they were prepared to advance either to its 
principle or itg admiaistration. 

In reply to such application, very full information as to the working 
of the Act and as to the necessity for it has been afforded to us by 
many of the employers to whom we addressed ourselves; but we regret 
to say that, in consequence of the decided opposition to the inquiry 
made by the representatives of the employed, with some few excep- 
tions, we have been unable to obtain the same or similar information 
from the employed or their representatives. The secretary of the 
London Trade Union Congress Parliamentary Committee, which repre- 
sents a very great number of the employed, in reply to the application 



No. 15.] DISPUTES AND COMBINATIONS. 155 

addressed to him requesting him either himself to give, or to assist us 
to obtain, evidence of the working of the Act, declined to assist the 
Commission in its labors in any way, and only forwarded to us a copy 
of a resolution passed by that Committee to the same effect. 

4. By the terms of our reference, oiir inquiry was not 
only into the law affecting trade disputes, etc., but also into 
the subject. 

5. My colleagues, who all have the advantage of being law- 
yers, have dealt most ably with the law affecting trade disputes. 
Most of our witnesses, however, have dealt with the subject and 
conditions of trade disputes and only incidentally with the law 
affecting them, and this evidence has appealed very strongly to 
me, confirmed as it is by my own many years' personal experi- 
ence of trade disputes.^ 

6. It is with deep regret that I find from the Majority Re- 
port and the Recommendations therein that the evidence of our 
witnesses has not been so conclusive to my colleagues who sign 
that Report as it appeared to me. I am glad to note that Sir 
Godfrey Lushington in his Report agrees with me to the extent 
of dissenting from five out of the nine Recommendations of the 
Majority Report. Most of the Recommendations seem to me 
to be directly contrary to the evidence, and under these cir- 
cumstances I have no alternative but to prepare a separate Re- 
port, giving my assent where possible, and the reasons of my 
dissent where I feel compelled to disagree. 

7. I agree with the following Articles of the Majority Report, 
viz., 1 to 35 (inclusive) ; 39 to 47 (inclusive) ; the first part of 
48 (to the end of line 20) which deals with the objections to 
Mr. Whittaker's Bill and with the evidence as to " picketing ; " 
and with 49 to 57 (inclusive). 

9. I dissent most strongly, for the reasons stated in dealing 
with the specific Recommendations of the Majority Report, from 



^ This personal experience, I may say, commenced with a practical engineering 
apprenticeship as a working apprentice, then as an assistant engineer for nine 
years, and then as manager of collieries and engineering works, and for about 
thirty years as a large employer of labor, in addition to being general manager 
of railways, docks, collieries, estates, and manufacturing works, and during 
twenty-five years of that time as Chairman of Associations which controlled the 
wages and arrangements of about 100,000 workmen, during which time I have 
personally had to deal with a large number of disputes, strikes and lock-outs in 
various trades. 



156 STATISTICS OF LABOK. [Pub. Doc. 

the following Articles in the Majority Report, viz., 36 and' 38; 
the latter part of 48 ; and 60 to 65 inclusive. 

10. I now proceed to deal with the specific Recommendations 
of the Majority Report contained in Article Q6. 

Recommendation I. of the Majority Report. 

(1) '\ That an Act should he passed to declare Trade Unions 
legal associations." 

The Trade Unions Act of 1871 enacted that the purposes of 
any Trade Union should not by reason merely that they were 
in restraint of trade he unlawful. 

The object of the Acts of 18Y1 and 1876 was to legalize 
combinations for trade purposes and acts done in furtherance 
of trade disputes. If the purposes of a Trade Union are lawful 
under these Acts, then, as I understand, the Trade Unions are 
lawful. Lord Justice Smith in Lyons v. Wilkins (1. Ch. 1896) 
at p. 833, states ^^ There is no doubt that a Trade Union now, 
as long as it carries on its affairs up to a certain point, is as 
legal as any other community or combination in the Kingdom.'' 

A '' Trade Union " as defined by these Acts includes a com- 
bination of employers equally with a combination. of employed. 

There is no demand on the part of employers, as far as I am 
aware, for any Act to declare these combinations legal associa- 
tions ; there certainly was no evidence given before us calling for 
it ; no case, in my opinion, has been made out for this enactment. 
I cannot assent to this recommendation, and I am glad to note 
that Sir Godfrey Lushington also dissents from it. 

Recommendation II. of the Majority Report. 

{2y ''That an Act should he passed to declare strikes from 
whatever motive or for whatever purposes {including sym- 
pathetic or secondary strikes), apart from crime or hreach of 
contract J legal , and to make the Act of 1875 to extend to sym- 
pathetic or secondary sti^ikes.'' 

The right to strike, i.e., a simultaneous refusal by workmen 
to sell their labor, was evidently conceded by Lord Lindley in 
his judgment in Quinn v. Leathern, where he says : — 

Intentional damage which arises from the mere exercise of the rights 
of many is not, I apprehend, actionable by law as now settled. 



Ko. 15.] DISPUTES AND COMBINATIONS. 157 

Mr. Askwith in his evidence, whicli is recommended by the 
Majority Report (Par. 10) to the perusal of all who wish a 
clear and exhaustive summary of the case law, definitely 
stated that workmen had the right to strike which was 'per se 
legal, i.e., that they might combine to leave work without break- 
ing contracts. 

None of the witnesses who came before us suggested that 
workmen should be deprived of this right, the legality of which 
they fully admitted. I agree that workmen now enjoy the right 
to strike, but I object most strongly to the Recommendation 
that strikes from whatever motive or for whatever purpose 
should be definitely legalized by Act of Parliament. A partic- 
ular set of circumstances may take a strike out of the category 
of lawful acts into the category of unlawful acts. The manner 
and way in which an act is committed might make what would 
otherwise be a perfectly lawful act an engine of cruel oppres- 
sion, and one against which the law should provide a remedy. I 
think it should be left to the Courts to decide, as at present, in 
each particular case the legality or otherwise of the conduct of 
the strikes. 

I agree with Mr. Webb's comments in his Memorandum, as 
to the effects of a strike which 

Necessarily involves so much 'dislocation of industry; so much indi- 
vidual suffering; so much injury to third parties; and so much national 
loss. 

The tendency of an Act, as recommended, would be to facili- 
tate strikes, which would be a very grave responsibility for 
Parliament to assume. Many of our witnesses have been in 
favor of absolutely prohibiting strikes against non-Unionists, 
and I should strongly support such legislation, if such should 
be found practicable. In any case, I am most strongly opposed 
to any amendment of the law relating to Trade Unions which 
would increase the facilities already existing for interfering with 
the liberty of any workman. The position of non-Union men 
is one of great difficulty owing to the injustice with which they 
have to contend. Not only is their liberty to work during a 
strike interfered with, but attempts have been made to prevent 
non-Union men obtaining employment even when no dispute 



158 STATISTICS OF LABOR. [Pub. Doc. 

exists, and there are many instances in which they have been 
prevented from obtaining house accommodation and the neces- 
saries of life, in order to compel them to join a Union. In some 
trades an employer is not at liberty, on pain of losing his 
Union men, to employ non-Union men at all, even as foremen. 
The workmen have the right to work or not as they please, they 
have nnqiiestionably the right to belong to a Trade Union or 
not as they please, and their right to earn their living should 
not be in any way dependent on their attachment to a society. 
Although the proportion of Unionists to non-Unionists is only 
one to ten, the minority, by means of their combinations and 
the manner in which they conduct themselves towards non- 
Unionists, are able to, and do in fact, exercise a cruel tyranny 
over the unorganized non-Unionists. The evidence we have had, 
and which the Trade Unionists have not come forward to deny, 
is overwhelming on this point. 

As regards the Recommendation that secondary strikes should 
be legalized by Act of Parliament, the Majority Report (Par. 
62) states that: 

The majority of the employers examined by us . . . agreed that there 
was no valid reason for drawing a distinction between secondary and 
other strikes. 

I think that a statement to the following effect would more 
accurately represent the facts : — 

The majority of the employers not being lawyers failed to grasp the 
niceties of legal points on which they were cross-examined : — 

as it is an undeniable fact that the witnesses examined by us 
were unanimous in desiring that the decisions in Lyons v. Wil- 
kins and Quinn v. Leathem should be maintained. It is also a 
fact that Mr. Askwith, whose evidence is specially commended 
in the Majority Report (Par. 10), stated that 

If the holding of the Lord Justices {in Lyons v. Wilkins) is correct 
with regard to Schoenthal, certainly secondary strikes are illegal, it 
seems. 

Mr. Askwith also stated : — 

The tendency of recent eases is to show that a combination to prevent 
others from working or to induce them to strike is prima facie illegal 



No. 15.] DISPUTES AND COMBINATIONS. 159 

and accordingly requires justification. Failing such justification a Trade 
Union, whose officials take action of the character I have mentioned, 
would be liable to be restrained by injunction and mulcted in damages. 

Mr. Askwith also quoted the following words of Lord Justice 
Kay in Lyons v. Wilkins : — 

Still more clearly is it illegal to induce a man or to prevent a man in 
the position of Schoenthal from working for the plaintiff by calling out 
the workmen of that man, and inducing them not lo work for him, that 
being done for the purpose of putthig pressure both upon Schoenthal 
and upon Messrs. Lyons, by preventing Schoenthal from working for 
Messrs. Lyons. I cannot read Section 7 without seemg distinctly that 
those things are not j)ermissible by this Act of Parliament, and no Act 
of Parliament can be referred to which makes them lawful. 

It appears to me to be clear from Mr. Askwitli's evidence and 
the quotations lie gave from the judgment in Lyons v. Willdns, 
that secondary strikes are illegal. It is equally clear that the 
evidence of our witnesses was unanimous in favor of maintain- 
ing the decision in Lyons v. Wilkins. 

I therefore consider that the Recommendation to legalize 
^' secondary strikes " by Act of Parliament is in direct oppo- 
sition to all the evidence, and I most strongly dissent from it. 

Recommendation III. of Majority Report. 

(3) '' That an act should he passed to declare that to persuade 
to strike, i.e., to desist from worhing, apart from procuring 
breach of contract, is not illegal.'^ 

The Recommendation to definitely legalize persuasion to strike 
by Act of Parliament appears to me a most dangerous and 
insidious proposal. Lord Lindley, then Master of the Rolls, 
in his judgment in Lyons v. Wilkins expressly stated that : — 

Persons may be peaceably persuaded provided that the method em- 
ployed to persuade is not a nuisance to other people. 

The law, as at present, was clearly declared by the then 
Attorney-General (Sir R. Pinlay) in the House of Commons 
{Hansard, May 14th, 1902), who in effect said: — 

Peaceable persuasion by itself never imposes any liability, civil or 
criminal; if peaceable persuasion is accompanied by acts which con- 



160 STATISTICS OF LABOR. [Pub. Doc. 

stitute a nuisance at common law, the immunity does not extend to it. 
In the cases which have arisen the question has not been peaceable per- 
suasion by itself but peaceable persuasion coupled with what is known 
as watching and besetting the house of the person to be affected by it. 

The Majority Report itself, at Article 46, states : 

It is sometimes represented that workmen are thus punished for 
merely peacefully persuading. But this is not so. No workman has 
ever been punished under this Act for merely peacefully persuading. 

Workmen at present enjoy tlie right to strike; workmen at 
present, also, are under no liability civil or criminal for merely 
peaceably persuading workmen to strike, but they are prevented 
from causing a " nuisance '' to others by means of their efforts 
to peaceably persuade, and tliey are also prevented from com- 
bining to foster a strike amongst workmen who do not wish to 
strike, and eventually inducing them to strike by preventing 
them by ^' persuasion " from going on working as they desire. 

The law as to striking is clearly laid down in the following 
passages from the judgments of the Lord Justices in the Court 
of Appeal in Lyons v. Wilkins (1. Ch. 1896, 811). 

Lord Lindley remarked at page 822 : 

Persons can not only decline individually to work for a master ex- 
cept upon terms which the workmen desire to obtain, but they can 
combine to do that. They can combine to leave him; they can strike 
unless he will raise the wages up to what they desire, and trade unions 
which assist them in withdrawing their own labor and declining to 
work, and which assist them in supporting themselves during the 
strike, can legally do so. Then arises a difficulty, which is as well 
known to those who conduct Trade Unions as it is to the masters, and 
to all persons who have experience in these disputes, and it may be put 
thus : " If that is all that we can do, we may be defeated by the masters 
making arrangements with other people who may be willing to work 
for them, either by taking the work home, or by working for less wages 
than we think is right, and unless we can stop that our strike may be 
ineffective." 

Then comes the struggle. 

Now, Parliament has not yet conferred upon Trade Unions the power 
to coerce people, and to prevent them from working for whomsoever 
they like upon any terms that they like; and yet in the absence of such 
a power it is obvious that a strike may not be effective, and may not 
answer its purpose. Some strikes are perfectly effective by virtue of 



No. 15.] DISPUTES AND COIMBINATIONS. 161 

the mere strike, and other strikes are not effective unless the next step 
can be taken, and unless other people can be prevented from taking the 
place of the strikers. That is the pinch of the case in trade disputes; 
and until Parliament confers on trade unions the power of saying to 
other people, " You shall not work for those who are desirous of em- 
ploying you upon such terms as you and they may mutually agree 
upon," Trade Unions exceed their power when they try to compel 
people not to work except on the terms fixed by the Unions. I need 
hardly say that up to the present moment no such power as that exists. 
By the law of this countrj^ no one has ever, and no set of people have 
ever, had that right or that power. If Parliament chooses to confer it on 
trade unions it will do so as and when it thinks proper, and subject to 
such limitations as it thinks proper; but it is idle to pretend not to see 
that this struggle exists. Trade Unions have now been recognized up to 
a certain point as organs for good. They are the only means by which 
workmen can protect themselves from tyranny on the part of those 
who employ them; but the moment that Trade Unions become tyrants 
in their turn, they are engines for evil; they have no right to prevent 
any man from workmg upon such terms as he chooses. 

Lord Justice Kay remarked at page 829 : 

At present the Legislature has simply legalized strikes, and a strike 
is an agreement between persons who are working for a particular 
employer not to continue working for him. Also, I take it that under 
the terms of the section which I have read it is not illegal for a Trade 
Union to promote that strike. But further than that the law has not 
gone. 

Lord Justice Kay remarked at page 830 : 

Still more clearly is it illegal to induce a man or to prevent a man in 
the position of Schoenthal from working for the plaintiff by calling 
out the workmen of that man, and inducing them not to work for him, 
that being done for the purpose of putting pressure both upon Schoen- 
thal and upon Messrs. Lyons by preventing Schoenthal from working 
for Messrs. Lyons. I cannot read s. 7 without seeing distinctly that 
those things are not permissible by this Act of Parliament, and no Act 
of Parliament can be referred to which makes them lawful. 

Lord Justice Smith, at page 834: 

What the union did was not done in furtherance of a trade dispute 
between Schoenthal and his men; but what they did was to call out Mr. 
Schoenthal's men in order to prevent him from working for Messrs. 
Lyons, and thus to compel Mr. Schoenthal, who was willing to work 



162 STATISTICS OF LABOR. [Pub. Doc. 

for Messrs. Lyons, not to work for them, by depriving him of the men 
wherewith to work for Messrs. Lyons, and by this means to injure 
Messrs. Lyons in their trade if they did not obey the edicts of the union. 
In my judgment that is inadmissible under the Acts of Parliament 
which I have mentioned and was illegal. 

It is clear from the above quotations that the recommendation 
that persuasion to strike should be definitely granted by Act 
of Parliament is evidently not required in order to allow work- 
men to merely peaceably persuade others to strike, for that is 
allowed at present. 

It should be considered in conjunction with the 8th Recom- 
mendation of the Majority Report, which proposes that an 
Act should be passed to abolish the offence of watching and be- 
setting a man's house with a view to compel him not to do, 
or to do, that which it is lawful for him not to do or to do. 

At present under the decision in Lyons v. Wilkins this is not 
only an offence within Section Y, Sub-Section 4 of the Conspiracy 
Act which Recommendation 8 of the Majority Report would 
cause to be repealed, but it may also be a nuisance at common 
law for which an action would lie; for such conduct seriously 
interferes with the ordinary comfort of human existence, and 
the ordinary enjoyment of the house beset and for which proof 
that the nuisance was caused by an attempt " peaceably to 
persuade other people " is no defence. 

Recommendation 8 of the Majority Report would deprive the 
party, whose house was watched and beset, of his statutory 
remedy under the Conspiracy Act, 18 75, and Recommendation 
3 of the Majority Report would authorize the committal of a 
nuisance, and deprive the injured party of his common law 
remedy. The man whose house was watched and beset would 
thus be deprived of every legal remedy, and as far as legal 
protection was concerned would become practically an outlaw. 
Even the Bills promoted in Parliament on behalf of Trade 
Unions of workmen never suggested that anything more than 
what was called " peacefully persuading " should be an excuse 
for watching and besetting; whereas the Recommendations 3 
and 8 of the Majority Report would not only legalize watching 
and besetting altogether, but would definitely legalize persuasion 
without the qualification '' Peaceful." 



No. 15.] DISPUTES AND COMBINATIONS. 163 

The reasons against these Recommendations are, I should 
have hoped, sufficiently obvious ; but not the least stringent of 
them will be found in Paragraph 48 of the Majority Report 
itself. 

The evidence as to what has been done under the guise of 
" peaceful persuasion/' even under the existing limitations of 
the Conspiracy Act, has been overwhelming. I am by no means 
convinced that the substitution recommended by the Majority 
Report for those existing limitations would afford anything like 
equal protection to that given at present, when it is coupled with 
the definite legalization of ^' persuasion," in place of the existing 
prohibition even of peaceful persuasion as an excuse for watch- 
ing and besetting; I feel I cannot over-estimate the magnitude 
of the injury that would be inflicted not only on employers, not 
only on trade, but more than all on non-Unionist workmen, who, 
though they are ten times as numerous as the Unionists, are 
still, as the evidence has shown, not only themselves but also 
their families, too often at the mercy of the organized minority, 
and would, if these Recommendations were carried out, be sub- 
jected to practically unrestricted coercion. 

The evidence of our witnesses was unanimous in recommend- 
ing that the decision in Lyons v. Wilkins be maintained ; these 
Recommendations would in effect over-rule it. There is nothing, 
therefore, in the evidence to justify these Recommendations, 
and neither on the ground of expediency nor of the public 
welfare can I conceive any justification for their being carried 
out. 

Recommendation IV. of the Majority Report, 

(Jf) '' That an Act should he passed to declare that an in- 
dividual shall not he liahle for doing any act not in itself an 
actionahle tort only on the ground that it is an interference 
with another person s trade, husiness, or employment." 

The Majority Report (Article 64) alleges as a justification 
for Recommendation 4 that Allen v. Flood decided practically 
to that effect, but that as there have been several dicta throwing 
doubt on this point, the Majority Report makes this Recom- 
mendation. 

The House of Lords decided the case of Allen v. Flood in 
1898, and the case of Quinn v. Leathem, in which the alleged 



164 STATISTICS OF LABOR. [Pub. Doc. 

contradictory dicta occurred, in 1901. It may be remarked in 
passing that the House of Lords decided both cases, and that 
the House of Lords cannot overrule itself, and that if there is 
really a conflict, it could only be decided in favor of one or 
the other decision by legislation. But, is there a conflict ? That 
appears to me to be the point, and, not being a lawyer, I turn 
for information to the judgments of the House of Lords in 
Quinn v. Leathem, only to find that the decision in Allen v. 
Flood was carefully considered by the Lords who decided the 
case of Quinn v. Leathem, and that in their minds there did 
not appear to be that confusion which the Majority Report 
appears to suggest. 

The Lord Chancellor in his judgment in Quinn v. Leathem, 
[1901] A. C. 506, makes this statement: 

Before discussing the case of Allen v. Flood and what was decided 
therein, there are two observations of a general character which I wish 
to make, and one is to repeat what I have very often said before, that 
every judgment must be read as applicable to the particular facts 
proved, or assumed to be proved, since the generality of the expressions 
which may be found there are not intended to be expositions of the 
whole law, but governed and qualified by the particular facts of the 
case in which such expressions are to be found. The other is that a 
case is only an authority for what it actually decides. I entirely deny 
that it can be quoted for a proposition that may seem to follow logi- 
cally from it. Such a mode of reasoning assumes that the law is neces- 
sarily a logical code, whereas every lawyer must acknowledge that the 
law is not always logical at all. My Lords, I think the application of 
these two propositions renders the decision of this case perfectly plain, 
notwithstanding the decision of the case of Allen v. Flood. 

The Lord Chancellor goes on to say (at p. 507) : 

This case is distinguished in its facts from those which are essentially 
important facts in Allen v. Flood. 

Lord Macnaghten in his judgment remarks (at p. 508) : 

I cannot help thinking that Allen v. Flood has very little to do with 
the question now under consideration. 

Lord Shand in his judgment remarks (at p. 515) : 

Their acts {i.e., the defendants') were wrongful and malicious in the 
sense found by the jury — that is to say they acted by conspiracy, not 



No. 15.] DISPUTES AND COMBINATIONS. 165 

for any purpose of advancing their own interests as workmen, but for 
the sole purpose of injuring the plaintiff in his trade. I am of opinion 
that the law prohibits such acts as unjustifiable and illegal : that by so 
acting the defendants were guilty of a clear violation of the rights of 
the plaintiff, with the result of causing serious injury to him and that 
the case of Allen v. Flood, as a case of legitimate competition in the 
labor market, is essentially different and gives no ground for the de- 
fendants' arguments. 

Lord Brampton in his judgment remarks (at p. 523) : 

Rightly understood I think the judgment in Allen v. Flood is harm- 
less to the present case. But I need hardly say that in order properly 
to understand and appreciate it, it is essential to ascertain what were 
the material facts assumed to exist by their Lordships who assented to 
that judgment, and what were the principles of laAv applied by them 
to those facts. ... In this case the alleged cause of action is very 
different from that in Allen v. Flood. 

Lord Lindley in his judgment remarks (at pp. 536, 537) : 

The facts of the case are entirely different from those which the 
House had to consider in Allen v. Flood. Every element necessary to 
give a cause of action on ordinary principles of law is present in this 
case. ..." Allen v. Flood " is far from covering this case and can 
only be made to cover it by gTeatly extending its operation. 

The above quotations from the judgments of the Lords who 
decided the case of Quinn v. Leathern appear to me to dispose 
of the contention in Article 64 of the Majority Report that 
the previous decision in Allen v. Flood makes it desirable to 
pass legislation which would in effect destroy the decision in 
Quinn V. Leathem on the ground of an alleged conflict between 
the two decisions whereas, in point of fact, the conflict, in the 
minds of those who decided the case, did not exist. 

Persuading workmen to strike who without persuasion would 
not have struck, threatening an employer to call out his 
Unionist workmen unless the non-Unionist workmen are dis- 
charged, threatening the employer's customer to call out the 
Unionist workmen of the customer unless the employed dis- 
charges his non-Unionist workmen, such acts are not an exercise 
of the right to strike, but are acts of interference directed 
against the employer or his customer, and therefore are prima 



166 STATISTICS OF LABOR. [Pub. Doc. 

facie unlawful, and in the absence of justification absolutely 
unlawful. Lord Lindley in. Quinn v. Leathern describes such 
acts as a dictation to the employer and his customers and 
servants of what they are to do, a violation by the workmen 
of their duty to the employer, his customers, and servants, 
which is to leave them in the undisturbed enjoyment of their 
liberty of action. 

Lord Brampton, too, in his judgment, quoted with approval 
the following sentence of Sir W. Erie : — 

Every person has a right under the law, as between himself and his 
fellow subjects, to full freedom in disposing of his own labor or his 
own capital according to his will. It follows that every other person 
is subject to the correlative duty arising therefrom, and is prohibited 
from any obstruction to the fullest exercise of this right which can be 
made compatible with the exercise of similar rights by others. 

I most strongly object to this Recommendation 4. It is 
directly in conflict with the evidence, which was unanimous in 
favor of maintaining the decision in Quinn v. Leathem intact, 
l^either on the evidence given before us nor on any general 
ground of policy does there appear to me to be any justification 
for legislation to legalize interference with another's trade, 
business, or employment, which the law at present, as laid down 
by Lord Lindley and Lord Brampton in Quinn v. Leathem, 
clearly prohibits. 

Recommendation V. of the Majority Beport. 

(5) ^'^ That an Act should he passed to provide for the facul- 
tative separation of the proper benefit funds of Trade Unions, 
such separation, if effected, to carry immunity from these funds 
being taken in execution/' 

I am aware that a large number of witnesses who came before 
us had no objection to this step, but the Trade Unions of work- 
men have always been opposed to the separation suggested. I 
do not think the facilities, if granted, would be availed of, and 
even if carried out I do not think these funds should be im- 
mune. 

It is not easy to see why, as a matter of justice, the claims 
of members to provisions made by themselves and for them- 



No. 15.] DISPUTES AND COMBINATIONS. 167 

selves against old age, sickness, etc., should be deemed superior 
to the claim of outsiders to reparation for the wrongs which 
those members, as represented by their Unions, have com- 
mitted against them. 

I am glad to say Sir Godfrey Lushington's view coincides 
with mine on this point, and I cordially agree with the argu- 
ments used by him in his Report in opposition to this Recom- 
mendation. 

Recommendation VI. of the Majority Report. 

(6) '' That an Act should he passed to provide means whereby 
the central authorities of a Union may protect themselves against 
the unauthorized and immediately disavowed acts of branch 
agents.''' 

A Trade Union is not liable unless the plaintiff can prove 
that a legal wrong has been done to him, that the wrongdoer 
was an agent of the Trade Union, and that in doing wrong he 
acted within the scope of his employment. The general law 
of agency applies to Trade Unions in the same manner as it 
applies to everybody else. Just as any other employer is liable 
for the acts of his servants, so those who constitute Trade 
Unions and employ officials are liable for the acts of those 
officials within the scope of their authority or duty. If the law 
of agency is to be altered, it must be altered so as to apply 
generally, but it w^ould be outside the scope of our reference 
to have inquired into this subject, and we have had no evidence 
as to the advisability or otherwise of this course. 

I desire to associate myself with the arguments used by Sir 
Godfrey Lushington in his Report in opposition to this Recom- 
mendation. 

Recommendation VII. of the Majority Report. 

(7) '' That an Act should be passed to provide that facul- 
tative powers be given to Trade Unions^ either (a) to become 
incorporated subject to proper conditions j or (b) to exclude the 
operation of Section ^ of the Trade Union Act, 1871, or of some 
one or more of its Sub-sections, so as to allow Trade Unions to 
enter into enforceable agreements with other persons and with 
their own members.'^ 



168 STATISTICS OF LABOK. [Pub. Doc. 

Proposals for voluntary incorporation were made by the 
majority of the Commissioners both of the Royal Commission 
on Trade Unions of 1867 and the Royal Commission on Labor, 
1894j but in both instances there were minority Reports signed 
by the representatives of Trade Unions of workmen dissenting 
from these proposals. It is quite true that several of our wit- 
nesses representing various interests as employers have stated 
they see no objection to this course, but we have not had the 
advantage of hearing the views of the Trade Unions of the 
employed on the point. On the other hand, most of our wit- 
nesses have expressed no opinion on this particular point, whereas 
there has been a unanimous opinion expressed by our witnesses 
as to leaving the liability of Trade Unions to rest on the decision 
of the House of Lords in the Taff Yale case. 

Under these circumstances I cannot concur in the recom- 
mendation of voluntary incorporation '' subject to prosper condi- 
tions " being made possible by Act of Parliament. The advisa- 
bility, or otherwise, of this course would largely depend on the 
views taken as to what were '^ proper conditions " as to which 
the recommendation is discreetly silent. 

My personal experience of industrial conditions has proved 
that satisfactory and binding agreements can be made between 
employers and workmen, as individuals, without the intervention 
of a Trade Union. I am anxious that workmen should be as 
free as at present to conclude such arrangements directly, with- 
out Trade Union intervention, but, as several of our witnesses 
have pointed out the advisability of making agreements entered 
into between Trade Unions of workmen and Trade Unions of 
employers legally enforceable, which at the present time they 
are not, owing to Sub-section 4 of Section 4 of the Trade Union 
Act of 1871, I agree, therefore, that this Sub-section should be 
repealed. I cannot assent to the Recommendation that ^' Section 
4 of the Act of 1871, or some one or more of its Sub-sections," 
should likewise be repealed on the ground that this repeal is 
necessary to allow Trade Unions to enter into enforceable agree- 
ments with their own members. The sub-sections alluded to 
in this Recommendation, although vaguely referred to as " one 
or more," are no doubt Sub-sections 1, 2, and 5. The witnesses 
who have been before us as representing Trade Unions of em- 



No. 15.] DISPUTES AND COMBINATIONS. 169 

ployers have not advised this repeal as necessary, and we have 
not had the advantage of hearing the views of witnesses on this 
point on behalf of the Trade Unions of workmen. 

It appears to me that this repeal would enable the Trade 
Unions to bring actions and obtain injunctions against individual 
members while leaving the individual members still unable 
through the operation of Sub-section 3 (a) of Section 4 to bring 
an action against the Trade Union of which they were members 
for refusing to apply for their benefit the benefit funds to 
Tvhich they had contributed. The repeal of this Sub-section 
3 (a) of the 4th section of the Trade Union Act of 1871 would 
relieve many members of Trade Unions from hardships to which 
they are at present exposed through its existence, as set forth 
in the evidence given before us, and I therefore recommend 
that this should also be repealed in addition to the repeal of 
Sub-section 4 of the 4th section of the Trade Union Act of 
1871. 

I again have the pleasure of associating myself with the argu- 
ments advanced by Sir Godfrey Lushington in his Report, 
against this Recommendation (7) of the Majority Report, though 
I am willing, as stated above, to assent to the repeal of Sub- 
section 4 of Section 4 of the Trade Union Act, 1871, which 
would be in accordance with the suggestions advanced by sev- 
eral of our witnesses. 

RecoTYimendation VIII. of the Majority Beioort. 

(8) " That an Act should he 'passed to alter the 7th Section 
of the Conspiracy and Protection of Property Act, 1875, hy 
repealing Sub-section J4. and the proviso, and in lieu thereof 
enacting as a new Suh-section (ivhich would also supersede Sub- 
section 1) : Acts in such a manner as to cause a reasonable 
apprehension in the mind of any person that violence will be 
used to him or his family, or damage be done to his pi^operty/' 

The Conspiracy and Protection of Property Act, so far as it 
would be repealed in consequence of Recommendation (8) of 
the Majority Report is as follows : . 

Section VII. Every person who, with a view to compel any other 
person to abstain from doing or to do any act which such other person 



170 STATISTICS OF LABOR. [Pub. Doc. 

has a legal right to do or abstain from doing wrongfully and without 
legal authority, — 

1. Uses violence to or intimidates such other person or his wife or 
children, or injures his property; . . . 

4. Watches or besets the house or other place where such other 
person resides, or works, or carries on business or happens to be, or 
the approach to such house or place; 

shall on conviction thereof by a court of summary jurisdiction, or on 
indictment as hereinafter mentioned be liable either to pay a penalty 
not exceeding twenty pounds, or to be imprisoned for a term not ex- 
ceeding three months, with or without hard labor. 

Attending at or near the house or place where a person resides, or 
works, or carries on business, or happens to be, or the approach to 
such house or place, in order merely to obtain or communicate in- 
formation, shall not be deemed a watching or besetting within the 
meaning of this section. 

" Watching and besetting '' is at present a criminal offence. 
If this Recommendation (8) were acted upon it would no 
longer be so. 

The decision in Lyons v. Wilkins merely comes to this, that 
if you wrongfully and without legal authority watch or beset 
the house, etc., of another with a view to compel him to abstain 
from doing or to do any act which he has a little right to do or 
abstain from doing, the mere fact that you were according to 
your contention engaged in '^ peaceful persuasion " is not a 
good defence. You are allowed so to attend if your object is 
merely to obtain or communicate information under the statute, 
but the Court refused to extend the words of the statute to 
" peaceful persuasion." 

With regard to the decision of the Court of Appeal in Lyons 
V. Wilkins, it should be remembered that though the Trade 
Union Congress of 1901 were advised by their counsel to get 
a decision of the highest tribunal on the question of " picketing,'' 
and though the Parliamentary Committee of that Congress ap- 
parently so decided, no steps have been taken by them to get 
the decision of the Court, of which they have complained so 
much, over-ruled by the House of Lords. 

I am in entire agreement with the arguments advanced by 
Sir Godfrey Lushington in opposition to this Recommendation 
(8) of the Majority Report, and the conclusion which he comes 



No. 15.] DISPUTES AND COMBINATIONS. 171 

to coincides with my own Recommendation. Sir Godfrey Lush- 
ington sums up the position in the following words : 

I am of opinion that picketing is an abuse for which a remedy is 
urgently required, and that the personal freedom of workmen needs 
not less protection than hitherto, but more. I, therefore, recommend 
that the existing prohibition of watching and besetting be retained and 
that the proviso permittmg it for the sole purpose of giving and re- 
ceiving information be repealed. 

I beg to refer to the following extract from Article 48 of the 
Majority Report re Picketing, with which I, also, cordially 
agree : — 

'' The evidence on this matter laid before us is on this 'point 
really overwhelming, and is evidence which the Trade Unions 
have made no attempt to contradict. What it comes to is this, 
that watching and besetting for the purpose of peaceably per- 
suading is really a contradiction in terms. The truth is that 
picketing, when it consists of watching or besetting the house, 
etc., however conducted, — and it is to be observed that the 
statute places no limit to the number of persons attending for 
the purpose only of obtaining or communicating information, 
or to the length of time during which such attendance may be 
maintained, — is always and of necessity in the nature of an 
annoyance to the person picketed. As such, it must savor of 
compulsion, and it cannot be doubted that it is because it is 
found to compel that Trade Unions systematically resort to it.'' 

I am at a loss to understand how my colleagues, who, in 
the Majority Report which they have signed, have given their 
opinion as to what " watching and besetting " is in practice, 
could have brought themselves to make a Recommendation 
which removes " watching and besetting " from the list of crim- 
inal offences, and ipso facto legalizes it. 

We have had before us witnesses representing every leading 
trade and industry in the United Kingdom and they are unani- 
mous in saying that in practice such a thing as " peaceful per- 
suasion " is unknown. 

Some of them have suggested that prima facie there would 
be no objection to allowing attendance for obtaining or com- 
municating information, as at present, if the law was amended 



172 STATISTICS OF LABOK. [Pub. Doc. 

so that the attendance was limited to two or three persons so 
attending, but the large majority of the witnesses have expressed 
the view that there is no difference in practice between the so- 
called '^ obtaining or comniunicating information " and the 
so-called '' peaceful persuasion." Our witnesses are unanimous 
in recommending that the law should not be amended so as to 
allow what has taken place before under the guise of '' peaceful 
persuasion " prior to the decision in ^' Lyons v. Wilkins/' and 
which would take place again if that decision were over-ruled 
by statute. Some of the witnesses have expressed themselves 
satisfied with the law as at present declared ; others have desired 
to see further protection given by limiting the number allowed 
to attend for " obtaining or communicating information." ISTone 
of them have advocated " peaceful persuasion," so-called, being 
allowed by law. The possibility of " watching and besetting " 
being legalized, without any qualification whatever, was never 
suggested to the witnesses when giving their evidence. Such 
a possibility has never been suggested in any of the Bills pro- 
moted in Parliament on behalf of the Trade Unions of worlonen. 
The representatives of the Trade Unions of workmen have made 
no such drastic proposal ; it has been reserved for those who 
have signed the Majority Report to do so, and this, too, in the 
face of the evidence given before us, and, as it appears to me, 
in direct conflict with the views expressed by them in Article 48 
of their Report. 

The object, no doubt, of this Pecommendation (8) in the 
Majority Peport is to do away with the sense of grievance or 
bad faith as to this question of " peaceful persuasion " due to 
the statement on behalf of the Government of 1875 that words 
to allow peaceful persuasion were unnecessary, as they were 
implied by the terms of the Bill, which allowed '^ obtaining or 
communicating information." (See Majority Peport, Article 
46.) Our evidence has shown that intimidation almost in- 
variably results from picketing, whether it is carried on for 
" information " or " peaceful persuasion " purposes. The Trade 
Unions of workmen have had every opportunity of coming 
forward to deny this evidence ; they have not done so. They 
have complained of the injustice of the decision in '^ Lyons v. 
Wilkins ; " they have not appealed against it. The Government 



No. 15.] DISPUTES AND COMBINATIONS. 173 

of thirty years ago thouglit '^ peaceful persuasion " was included 
in '^ obtaining or communicating information." The Courts, 
applying their ordinary principle as to the construction of 
statutes/ have decided this is not so. The experience of thirty 
years since has shown that intimidation results from " picket- 
ing " imder whatever name it is included. 

Our witnesses are unanimous against any extension of " pick- 
eting " by allowing " peaceful persuasion; " some of them think 
that ^^ obtaining or communicating information " might be left 
if the members so attending were limited to two or three, but 
the great majority think picketing should be abolished altogether, 
and to do this I recommend that the proviso only of Section 7 
of the Conspiracy, etc., Act, 1875, be repealed so that wrong- 
fully and without legal authority watching and besetting the 
house, etc., of another with a view to compel him to do or abstain 
from doing any act which he has a legal right to do or abstain 
from doing may no longer be lawful, and this is the proposal 
which Sir Godfrey Lushington, also, recommends in his Report. 

I am satisfied that the law, as at present declared, with this 
amendment would ensure sufficient protection both to employers 
and employed. 

I have carefully considered the question of substituting the 
new Sub-section recommended in Recommendation (8) of the 
Majority Report, viz. : 

Acts in such a manner as to cause a reasonable apprehension in the 
mind of any person that violence will be used to him or his family, or 
damage be done to his property. 

It appears to me that, in effect, it comes to much the same 
thing as Sub-section (1) of Section 7 of the Conspiracy and 
Protection of Property Act, 1875, which it proposes to repeal, 
which is as follows : — 

Uses violence to or intimidates such other person or his wife or 
children, or injures his property. 

1 See Maxwell on "Interpretation of Statutes," 3rd Edition, p. 38 : 
" It is unquestionably a rule that what may be called the Parliamentary his- 
tory of an enactment is not admissible to explain its meaning. Its language can 
only be regarded as the language of the three estates of the Realm, and the 
meaning attached to it by its framers, or by individual members of one of those 
estates, cannot control the construction of it." 



174 STATISTICS OF LABOR. [Pub. Doc. 

It appears to make a new criminal offence ^' causing a reason- 
able apprehension in the mind of any person '' in place of an 
existing criminal offence of " intimidation." But the new 
subsection is not only to take the place of that jnst quoted 
(Sub-section 1), but is also in substitution for the existing 
provision making ^' watching and besetting " a man's house a 
criminal offence. 

Even if the proposal were limited to the repeal only of Sub- 
section (1) I should not be prepared to accept it in substitution 
for the reasons stated hereafter. As a substitution for the 
'' watching and besetting " provisions at present existing, it 
seems to me entirely inadequate. It might have been at least 
a more adequate attempt to provide a like protection to that 
existing already if the words " or acts in combination with 
others so as to create a nuisance '' had been added. My col- 
leagues who have signed the Majority Report, in the course of 
their argument in Article 48 in support of Recommendation 
(8), remark that: 

It must be remembered that if picketing amounts to a nuisance, it 
can be restrained, by injunction, and that a Trade Union which au- 
thorizes the nuisance can be made Hable to a civil action. 

Mr. Askwith, however, in his evidence pointed out that one 
of the objects of the Legislature was to substitute a provision 
which could be enforced summarily in the place of legal pro- 
ceedings which could only be enforced by an extremely difficult 
and expensive process, i.e., by an action at law claiming an 
injunction and damages for any loss. Proceedings to abate a 
nuisance and an injunction would, in practice, be perfectly 
useless, because the strikers could put on separate men each 
time, which would mean that the injured party would have to 
bring, possibly, hundreds of actions in order to abate the 
nuisance. Even with the addition '^ or acts in combination 
with others so as to create a nuisance " I could not have ac- 
cepted the new sub-section as a desirable substitution. I am 
not as acquainted with the law as my colleagues who have 
signed the Majority Report, but I do foresee, as a layinan, that 
the Courts would be certain to be approached by one side or 
the other in order to obtain decisions as to the meaning and 



No. 15.] DISPUTES AND COMBINATIONS. 175 

interpretation of the words used in the new sub-section, whereas 
under the decision of the Court of Appeal in ^' Lyons v, 
Wilkins/' the employers are satisfied both in law and practice, 
and the Trade Unions of workmen, by their failing to appeal 
against it, appear to be satisfied that it is good law, however 
much they object to it in practice. 

If the result of the substituted sub-section is in law to weaken 
the protection against intimidation which at present exists for 
employers and employed I am against it; if on the other hand, 
I am wrong as to the legal effect, and the result in law is merely 
by another method to achieve an equal protection to that now 
afforded, I must still prefer the present declaration of the law 
which has been accepted by both sides, whereas the new enact- 
ment would lead to new litigation and consequent great expense. 

Recommendation IX. of the Majority Report. 

(9) *' That an Act should he passed to enact to the effect 
that an agreement or combination by two or more persons to 
do or procure to be done any act in contemplation or furtherance 
of a trade dispute shall not be the ground of a civil action, 
unless the agreement or combination is indictable as a con- 
spiracy notwithstanding the terms of the Conspiracy and Pro- 
tection of Property Act, 1876." 

The House of Lords in Quinn v. Leathem 1901 A. C. 495 
decided that the Conspiracy and Protection of Property Act, 
1875, Section 3 (which exempted combinations in trade dis- 
putes from the law of criminal conspiracy), had nothing to do 
with civil remedies. 

This Recommendation (9) of the Majority Report would 
do away with the decision in Quinn v. Leathem. The facts 
of the case will be found quoted in Article 56 of the Majority 
Report. 

I would, in addition, quote a few passages from the judg- 
ments of the Law-lords who decided the case. 

Lord Halsbury, Lord Chancellor, in his judgment (P. 585) 
remarks : — 

The plaintiff has proved to the satisfaction of a Jury that the de- 
fendants have wrongfully and maliciously induced customers and ser- 
vants to cease to deal with the plaintiff, that the defendants did this 



176 STATISTICS OF LABOR. [Pub. Doc. 

in pursuance of a conspiracy framed among them, that in pursuance 
of the same conspiracy they induced servants of the plaintiff not to 
continue in the plaintiff's employment, and that all that was done with 
malice in order to injure the plaintiff, and that it did injure the plain- 
tiff. If upon these facts so found the plaintiff could have no remedy 
against those who injured him, it could hardly be said that our juris- 
prudence was that of a civilized community. 

Lord Macnaghten (at P. 511) remarks : — 

A man may resist without much difficulty the wrongful act of an 
individual . . . but it is a very different thing when one man has to 
defend himself against many combined to do him wrong. 

Lord Sliand (at P. 515) remarks: — 

They acted by conspiracy, not for any purpose of advancing their 
interests as workmen, but for the sole purpose of injuring the plaintiff 
and his trade. I am of opinion that the law prohibits such acts as 
unjustifiable and illegal; that by so acting the defendants were guilty 
of a clear violation of the rights of the plaintiff, with the result of 
causing serious injury to him. 

Lord Brampton (at P. 530) remarks: — 

Much consideration of the matter has led me to be convinced that a 
number of actions and things not in themselves actionable or unlaw- 
ful, if done separately without conspiracy may, with conspiracy, be- 
come dangerous and alarming, just as a grain of gunpowder is harm- 
less but a pound may be highly destructive, or the administration of 
one grain of a particular drug may be most beneficial as a medicine 
but administered frequently and in larger quantities with a view to 
harm may be fatal as a poison. 

Lord Lindley (at P. 537, 538, 541, 542) remarks: — 

It was contended at the bar that if what was done in the case had 
been done by one person only, his conduct would not have been action- 
able, and that the fact that what was done was effected by many acting 
in concert makes no difference. My Lords, one man without others 
behind him who would obey his orders could not have done what these 
defendants did. ... 

My Lords, it is said that the conduct which is not actionable on the 
part of one person cannot be actionable if it is that of several acting 
in concert. This may be so where many do no more than one is sup- 



No. 15.] DISPUTES AND COMBINATIONS. 177 

posed to do. But numbers may annoy and coerce where one may not. 
Annoyance and coercion by many may be so intolerable as to become 
actionable, and produce a result which one alone could not produce. 

But there are many ways short of violence, or the threat of it, of 
compelling persons to act in a way which they do not like. ... Is a 
combination to annoy a person's customers, so as to compel them to 
leave him unless he obeys the combination, permitted by the Act or not? 
It is not forbidden by Section 7; is it permitted by Section 3? I 
cannot think that it is. . . . It must be conceded that if what the de- 
fendants here did had been done by one person it would not have been 
punishable as a crime. 

An illegal agreement, whether caiTied out or not, is the essential ele- 
ment in a criminal case : the damage done by several persons acting in 
concert, and not the criminal conspiracy, is the important element in 
the action for damages. 

In my opinion, it is quite clear that Section 3 has no application to 
civil actions: it is confined entirely to criminal proceedings. Nor can I 
agree with those who say that the civil liability depends on the crim- 
inality, and that if such conduct as is complained of has ceased to be 
criminal it has, therefore, ceased to be actionable. On this point I 
will content myself by saying that I agree with Andrews, J., and those 
who concurred with him. It does not follow, and it is not true, that 
annoyances which are not indictable are not actionable. The law 
relating to nuisances, to say nothing of the law relating to combina- 
tions, shows that many annoyances are actionable which are not in- 
dictable, and the principles of justice on which this is held to be so 
appear to me to apply to such cases as these. 

My Lords, I will detain your Lordships no longer. Allen v. Flood 
(2) is in many respects a very valuable decision, but it may be easily 
misunderstood and carried too far. 

Your Lordships are asked to extend it and to destroy that individual 
liberty which our laws so anxiously guard. The appellant seeks by 
means of Allen v. Flood (2), and by logical reasoning based upon some 
passages in the judgments given by the noble Lords who decided it, to 
drive your Lordships to hold that boycotting by trades unions in one 
of its most objectionable forms is lawful, and gives no cause of action 
to its victims although they may be pecuniarily ruined thereby. 

My Lords, so to hold would, in my opinion, be contrary to well- 
settled principles of English law, and would be to do what is not yet 
authorized by any statute or legal decision. 

Our witnesses have unanimously expressed their satisfaction 
with the law declared in Quinn v. Leathern, and those of our 
witnesses who have specifically dealt with the purport of Rec- 



178 STATISTICS OF LABOR. [Pub. Doc. 

ommendation (9) of the Majority Report are agreed that such 
an exemption as is proposed in the case of trade disputes from 
the general law of conspiracy would be highly injurious to the 
community. It is impossible for me to disregard the evidence 
which has been given before us, and I must most strongly dissent 
from this recommendation. The law of conspiracy is a general 
law affecting everyone of His Majesty's subjects. It is true that, 
at the desire of the Trade Unions of workmen, the Conspiracy, 
etc.. Act of 1875 exempted combinations in trade disputes from 
the consequences attaching to criminal conspiracy. The Trade 
Unions of employers, so far from desiring any extension of 
this privilege to cover civil conspiracy, have come before us and 
unanimously and categorically expressed themselves against any 
such exemption from the general law being granted in the case of 
tra'de disputes. The Trade Unions of workmen have, as we know 
from outside sources, desired this extension, but they have given 
no evidence before us to that effect and have allowed the evidence 
given on the other side to go unchallenged. When the exemption 
from criminal conspiracy was granted by the Conspiracy, etc., 
Act, 1876, to combinations in trade disputes, the subject of 
civil conspiracy was not discussed, as the civil liability of Trade 
Unions had not then, though existent, been brought before 
the Courts. The remarks of the promoters of that legislation 
referred only, as it appears to me, to that which was present to 
their minds; they cannot be taken to imply a promise that a 
limited privilege granted in the knowledge of certain facts 
should when new circumstances have arisen be made absolute 
so as to cover these new circumstances and conditions. The new 
circumstances and conditions must be viewed in the light of 
the present, with the experience gained from our acquaintance 
with the practices prevailing in trade disputes in the past. 

The Trade Union of workmen's complaint is that the judg- 
ments given against them in the law courts in the Taff Yale 
case, Quinn v. Leathem, and Lyons v. Wilkins entirely alter 
the law in what has been understood to be its meaning for 
the last thirty years. This erroneous belief is evidently not 
considered by my colleagues who have signed the Majority 
Report to be a ground of relief, for they recommend the main- 
tenance of the Taff Yale decision in Paragraphs 1-35 of the 



No. 15.] DISPUTES AND COMBINATIONS. 179 

Report, with wMcli paragraphs Sir Godfrey Lushington and I 
also concur. Their decision to recommend the overruling of 
Quinn v. Leathern cannot, therefore, be based on the ground of 
compassion for erroneous belief. They remark in Article 60 : — 

The protection conceded was at that time {i.e., 1875) confined to 
the criminal side. We think it can fairly be said that the civil side 
should be equally dealt with. 

I am afraid I fail to follow the argument. Surely the mere 
fact that combinations in trade disputes are already exempt 
from the law of criminal conspiracy which applies to every 
other body of persons is, in itself, no argument for exempting 
them from all liability, civil as well as criminal. Moreover, as 
is pointed out by my colleagues in the Majority Report, Article 
54: — 

The civil action of conspiracy differs in this respect from the crim- 
inal, that the conspiracy is not complete by mere agreement, but must 
result in something being done from which damage results in order 
that the action may lie. 

In view of the inherent differences thus shown between the 
civil and criminal aspects of conspiracy, there appears to me 
to be no inconsistency in the present position, under which, in 
trade disputes, a conspiracy may be actionable, although not 
punishable as a crime, by reason of the exemption from crim- 
inal liability granted under the Conspiracy Act. 

Moreover, my colleagues who have signed the Majority 
Report in Article 33 remark: — 

When Trade Unions come in contact hy reason of their own 
actions with outsiders and ex hypothesi wrong those outsiders, 
there can he no more reason that they should he heyond the 
reach of the law than any other individual, partnership or insti- 
tution. 

If my colleagues had acted consistently with their own maxim 
as laid down in Article 33, Recommendation 9 of the Majority 
Report would never have been made, it seems to me. 

11. There is one passage in Mr. Sidney Webb's Memorandum 
which I cannot allow to pass without comment. He refers 
to the system in New Zealand and Australia as being '' to 



180 STATISTICS OF LABOR. [Pub. Doc. 

the general satisfaction of employers and employed." I have 
no information as to the satisfaction or otherwise felt by the 
employed with that system, but from the information I have 
received from employers out there I should be inclined to say 
their feeling w^as better described as one of general dissatis- 
faction, rather than satisfaction, with the system. 

12. Whatever may be the explanation of the Recommenda- 
tions made by my colleagues in the Majority Report, I have 
no hesitation in saying it will not be found in the evidence 
given before us. We called before us no less than 58 witnesses 
representing all the leading trades and industries, and their 
evidence was heard for 28 days; yet, to my surprise, my col- 
leagues who have signed the Majority Report have thought it 
right to entirely ignore this evidence, except only so far as it 
relates to the maintenance of the Taff Yale decision, as to 
which we are unanimous (Majority Report, Articles 1-35, 39). 
My surprise that these Recom m endations should be made will 
be shared not only by the witnesses who, at our request, gave 
evidence before us and whose evidence, though practically unani- 
mous, has been absolutely ignored, but will be equally felt by 
any impartial person who will peruse the Volume of Evidence 
issued simultaneously with our Report. My recommendations 
which are entirely based upon the evidence, confirmed as it 
is by my own personal experience, may be summarized as 
follows : — 

(1) That no statute should he passed which would in effect 
repeal the decisions in the Taff Vale case, Lyons v. Wilhins, 
and Quinn v. Leathern, the beneficial effects of which to the 
community generally have been emphasized by all our wit- 
nesses. 

{2) That Subsection 3 (a) of Section ^ of the Trade Union 
Act, 1871, be repealed in order to give members of a Trade 
Union a right of action against the Trade Union to ivhich they 
belong for improperly refusing to apply for their benefit the 
benefit funds to which they had contributed and that Sub-section 
Jf- of Section J/- of the Trade Union Act, 1871, be also repealed 
in order to make agreements entered into between Trade Unions 
of workmen and Trade Unions of employers legally enforceable. 



No. 15.] DISPUTES AND COMBINATIONS. 181 

(3) That the proviso only of Section 7 of the Conspiracy 
and Protection of Property Act, 1875, he repealed in order to 
prevent watching and besetting under any circumstances. This 
Recommendation is also made by Sir Godfrey Lushington in 
his Report. 

(Jf) That in view of the overwhelming evidence we have 
received as to the cruelty and oppression to which non-Unionists 
are subjected at present, the practicability of devising legisla- 
tion to prohibit strikes against non-Unionists should be con- 
sidered in order to prevent, if possible, the existing gross in- 
fringements of the liberty of the subject. 



182 STATISTICS OF LABOR. [Pub. Doc. 



CHROI^OLOGICAL SURVEY OF BRITISH LEGISLA- 
TIO]^ AFFECTI:NTG THE STATUS OF TRADE 
UOTOlSrS, 1824-1906. 

Prior to 1824 the law of England treated the workingman 
who endeavored to secure an amelioration of his condition with 
great severity. The combination laws, so-called, which were in 
operation from 1799 to the time of their repeal in 1825, were 
very stringent. The preamble of the act of 1799 (39 Geo. Ill, 
Chap. 8) recited that "great numbers of journeymen manu- 
facturers and workmen in various parts of thiis Kingdom have 
by unlawful meetings and combinations endeavored to obtain 
advance of their wages and to effectuate other illegal purposes ; 
and the laws at present in force against such unlawful conduct 
have been found to be inadequate to the suppression thereof." 
It was therefore held necessary " that more effectual provision 
should be made against such unlawful combinations ; and for 
preventing such unlawful practices in future and for bringing 
such offenders to more speedy and exemplary justice.'' This 
law declared null and void all agreements between journeymen 
manufacturers or workmen entered into for the purpose of 
obtaining an advance of wages or altering their hours of labor, 
and workmen entering into such agreements were, upon con- 
viction, to be committed to jail. 

1824. A law was passed (5 Geo. IV, Chap. 67) repealing 
the law prohibiting combinations of workingmen, many acts 
thus repealed dating back to Edward I. (This act was re- 
pealed by the act of 1825.) 

' 1825. The act of 1824 having been found to be unsatis- 
factory, an investigation was had by a Parliamentary Committee 
which resulted in a new law (6 Geo. IV, Chap. 129) abrogating 
the act of 1824. This new law provided that it should not be 
held unlawful for persons to meet " for the purpose of con- 
sulting upon and determining the rate of wages or prices 
which the persons present at such meeting should demand for 
their work." The right of collective bargaining, involving the 
power to hold labor from the market by concerted action, was 



No. 15.] SURVEY OF BRITISH LEGISLATION. 183 

thus for the first time established. {This act was repealed hy 
the Criminal Law Amendment Act of 1871.) 

1859. The dissatisfaction arising from the interpretation 
which the courts put upon the act of 1825, — namely, that labor 
combinations were unlawful, under the common law, on the 
ground that they were in restraint of trade, — provoked an agita- 
tion extending over a long period of years and finally resulted, 
in 1859, in the passage of an act (22 Yict., Chap. 34) amend- 
ing the law by providing that workingmen were not to be held 
guilty of " molestation '' or " obstruction " under the act of 
1825 simply for entering into agreements to fix the rate of 
wages, or the hours of labor, or to endeavor peaceably to per- 
suade others to cease or abstain from work to produce the same 
results. (This law was also repealed hy the Criminal Law 
Amendment Act of 1871.) 

1871. The courts in their decision of cases arising out of 
the act of 1859 were scarcely more friendly than they had been 
in their interpretation of the original act of 1825, and a fresh 
agitation to more firmly secure for workingmen the right to 
organize arose. In 18 6Y a commission was therefore appointed 
to inquire into the subject, and its report resulted in the passage 
of two important acts : — 

1. The Trade Union Act (34 and 35 Vict., Chap. 31). This act pro- 
vided that " the purposes of any trade union shall not, by reason mere] 3' 
that they are in restraint of trade, be deemed to be unlawful, so as to 
render any member of such trade union liable to criminal prosecution for 
conspiracy or otherwise. The purposes of any trade union shall not, by 
reason merely that they are in restraint of trade, be unlawful so as to 
render void or voidable any agreement or trust." {The text of the 
act is given in full on pages 192-201 of this report.) 

2. The Criminal Law Amendment Act (34 and 35 Vict., Chap. 32). 
This act, while making stringent provisions against coercion, violence, 
threats, following, molestation, and obstruction, contained no prohibition 
against doing or conspiring to do an act on the ground that it was in 

■ restraint of trade unless it came within the scope of the enumerated 
prohibitions. [The text of the act is given in full on pages 202-206 of 
this report. It was amended hy the Conspiracy and Protection of 
Property Act of 1875.) 

1875. It was generally assumed, after the legislation of 
1871, that strikes as ordinarily conducted were not illegal. 



184 STATISTICS OF LABOR. [Pub. Doc. 

But in 1872 certain gas stokers being on strike were indicted 
for conspiracy, the defendants brought to trial and sentenced to 
a year's imprisonment, the court holding that ^^ a threat of 
simultaneous breach of contract by the men was conduct which 
the jury ought to regard as a conspiracy to prevent the gas com- 
pany carrying on its business." The sentence, however, was quite 
generally regarded as severe, and so vigorous was the agitation 
provoked by it that a remission of eight months of the penalty 
originally meted out was secured for the men. But a more 
important result was that once more dissatisfaction with a court 
ruling led to the appointment of a commission of inquiry, which 
in turn reported recommendations for still further alterations 
in the law. So, in 1875, the Home Secretary introduced a 
bill which received the royal assent on August 13 of that year, 
(38 and 39 Yict., Chap. 86), and is known as the Conspiracy 
and Protection of Property Act, 1876. The new law did not 
repeal the provisions relating to picketing in the law of 1871 
but it contained this important provision : — 

An agreement or combination by two or more persons to do or 
procure to be done any act in contemplation or furtherance of a trade 
dispute between employers and workmen shall not be indictable as a 
conspiracy if such act committed by one person would not be punishable 
as a crime. 

(In force, hut amplified hy the Trade Disputes Act, 1906. 
The text is given in full on pages 206—215 of this report.) 

1876. The Trade Union Amendment Act, 1876 (39 and 
40 Vict., Chap. 22) amended the act of 1871, but did not 
repeal it. It gave a new definition, however, of a trade union 
in its last section, as follows : — 

The term " trade union " means any combination, whether tem- 
porary or permanent, for regulating the relations between workmen 
and masters, or between workmen and workmen, or between masters 
and masters, or for imposing restrictive conditions on the conduct of 
any trade or business, whether such combination would or would not, 
if the priaeipal Act had not been passed, have been deemed to have 
been an unlawful combination by reason of some one or more of its 
purposes being in restraint of trade. 



No. 15.] SURVEY OF BRITISH LEGISLATION. 185 

{The text of the act is given in full on pages 215—219 of this 
report. It was amended and revised by the Trade Disputes 
Act, 1906.) 

1900. The Taff Yale Decision". For a quarter of a 
century after the passage of the legislation of 1875 and 1876 
reinforcing the acts of 1871, British workmen believed they 
were acting well within the limits of law in their defensive and 
offensive operations against their employers. Then came an- 
other court decree which, more sweeping than any yet made, 
had a stunning effect on the trade unions. This was the famous 
Taff Vale case, the final decision of which by the House of 
Lords completely upset the legal traditions of a generation rela- 
tive to the legal status of trade unionism. 

In June, 1900, the men employed by the Taff Vale Railway 
Company, in Wales, were urged to strike, by one James Holmes, 
a local organizer of the Amalgamated Society of Railway Ser- 
vants, for an advance in wages and to make certain other de- 
mands upon the company. The General Secretary of this 
organization, Richard Bell, whose headquarters were in London, 
promptly wrote Holmes, declaring that he was exceeding his 
authority in urging the men to strike. Holmes, nevertheless, 
continued obdurate, and in addresses to the men at their meet- 
ings deliberately encouraged them to strike. 

■ The situation was aggravated by an attempt on the part of 
the company to transfer a signal man who had been 20 years 
in the service to a remote part of the system. The signal man 
was confined to his bed at the time, and was physically unable 
to make the transfer. Upon his recovery, he was informed that 
the vacancy had been filled and also that his old position had 
been filled. The Company offered him another position at a 
lower rate of pay which he refused to accept and demanded 
that he be restored to his former place. The Company re- 
fused this demand. The men interpreted this as an arbitrary 
exercise of power on the part of the company and in the nature 
of a challenge, and they immediately determined to strike 
unless the employee in question was at once restored to his 
former position. Bell, the General Secretary, continued to 
counsel prudence and patience on the part of the men and 



186 STATISTICS OF LABOR. [Pub. Doc. 

again called Holmes' attention to the fact that the movement 
had not yet received the sanction of the central executive com- 
mittee and that for the men to strike without its sanction 
would be in clear violation of the rules of the union. On 
August 19 the executive committee of the society adopted a 
resolution censuring the men for having proceeded without its 
consent, while at the same time condemning the railway com- 
pany for the removal of the employee referred to. The com- 
mittee, however, agreed to give financial assistance to the 
strikers, and Secretary Bell went to Cardiff and took personal 
command of the strike, which formally began on August 20. 
The strike itself was of short duration and was settled in ten 
days by a compromise being effected. 

Meantime, however, the Taff Vale Railway Company had 
determined to test its rights under the law and had brought 
suit, immediately the men went on strike, against over 200 
of their former employees for breach of contract, on the ground 
that the men had left the company's services without notice or 
on an insufficient notice. Sixtv of the men were fined in the 
police court £-1 each and costs. 

The company next applied for an injunction to restrain the 
Amalgamated Society of Railway Servants, its officers, and 
members generally from committing certain acts alleged to be 
illegal, including picketing, intimidation, and in general inter- 
fering with and obstructing the conduct of the company's busi- 
ness. Damages were claimed in the sum of £24,626 ($119,842) 
for injury done to plaintiffs by loss of business and extra ex- 
pense arising out of the alleged unlawful and malicious con- 
spiracy of the defendants. 

A temporary injunction and restraining order was issued, the 
writ being made returnable on August 30. Justice Farwell 
granted an interim injunction and, on September 5, made two 
orders, one refusing to strike the name of the society out of 
the action, and the other granting an interim injunction against 
the society. In so doing, he held, contrary to the contention of 
the organization, that the Amalgamated Society of Railway 
Servants might be sued as a trade union. The defense set up 
by the society was that, under the Acts of 1871 and 18 76, a 
trade union being neither a corporation, nor an individual, nor 



No. 15.] SUKVEY OF BEITISH LEGISLATION. 187 

a limited liability company, was not collectively, as a union, 
liable for the acts of its members or responsible civilly or crim- 
inally for their acts. But Justice Farwell ruled for the plaintiff; 
deciding that the union, as a union, was an entity which might 
be reached by process of law, in these words: 

Although a corporation and an individual, or individuals may be the 
only entities known to the common law w4io can sue or be sued, it is 
competent to the legislature to give to an association of mdividuals, 
which is neither a corporation nor a partnership nor an individual, a 
capacity for owning property and acting by agents; and such capacity, 
in the absence of express enactment to the contrary, involves the neces- 
sary correlative of liability, to the extent of such property, for the acts 
and defaults of such agents — • in other words, the liabiHty of being 
sued in its registered name. 

If this decision could hold it was by no means a barren 
victory for the Taff Vale Railway Company, for although many 
trade unions had no substantial funds which could be attached 
for damages in the event of a suit going against them, the 
Amalgamated Society of Railway Servants was one of the 
most prosperous trade unions in the United Kingdom. It had 
$1,500,000 in its treasury, and it naturally proposed to fight 
the case to the end. It therefore took an appeal, and the 
hearing was held in the Court of Appeals November 12, 1900, 
the question at issue being a simple one as to whether Mr. 
Justice Farwell had erred in deciding that trade unions could 
be sued. The court reversed Justice Farwell' s decision, hold- 
ing that if the Legislature had intended to provide in the Trade 
Union Acts that unions could sue or be sued, " the Legislature 
well knew how in plain terms to bring about such a result." 
In conclusion the Master of the Rolls said: 

As there is no statute empowering this action to be brought against 
the union in its registered name, it is not maintainable against the 
Amalgamated Society of Railway Ser\^ants, eo nomine, and these de- 
fendants must therefore be struck out, the injunction against them 
must be dissolved, and the appeal as regards these defendants must be 
allowed with costs here and below. 

It was now the turn of the railway company to appeal again, 
which it promptly proceeded to do, taking the case to the highest 



188 STATISTICS OF LABOR. [Pub. Doc. 

court of resort, in the Kingdom, the House of Lords. This 
body reversed the decision of the Court of Appeals and sus- 
tained the judgment of Justice Farwell of the lower court. ^ 
The Lord Chancellor, in pronouncing the opinion, said : 

In this case I am content to adopt the judgment of Farwell, J., with 
which I entirely concur; and I can not find any satisfactory answer to 
that judgment in the judgment of the court of appeal which overruled 
it. If the legislature has created a thing which can own property, 
which can employ servants, which can inflict injury, it must be taken, 
I think, to have impliedly given the power to make it suable in a court 
of law for injuries purposely done by its authority and procurement. I 
move your lordships that the judgment of the court of appeal be 
reversed, and that of Farwell, J., restored. 

Defeated in the courts of law, the only appeal now left for 
the trade unions was to the court of public opinion, and they at 
once began to put in motion the machinery of agitation and 
appeal which had served them so effectively in the past and 
which, as the event has now apparently proved, was to avail 
for their success again. In 1824, Parliament had passed an 
act repealing the statutes to prevent the combination of work- 
ingmen, but its operation being unsatisfactory, a commission of 
inquiry was appointed and its deliberations resulted in a new 
law in 1825 ; the interpretation placed by the courts upon the 
act of 1825 being unsatisfactory to those who expected to 
benefit by it, prolonged agitation brought about the enactment 
of a new law in 1859; again, the court decisions were unsatis- 
factory and again, in 1867, a commission was appointed to con- 
sider the situation, and its report resulted in the legislation of 
1871 ; once more, a distasteful court decision provoked so much 
criticism that a commission of inquiry was created to see what 
should be done about it, and further amendatory legislation 
was passed on the government's motion in 1875. This legisla- 
tion remained unchallenged until 1900, but no sooner had the 
British workingman recovered from the first paralyzing effect 
of the blow dealt by the Taff Yale decision, than he sought by 
the orderly processes of law to nullify the decree of the court. 
He set out, in short, to secure an amendment of the Trade Union 

1 The text of the Taff Vale decision by the House of Lords is given in full in Part III 
of the Annual Report of the Massachusetts Bureau of Statistics of Labor for 1906 (p. 232) 
on the Incorporation of Trade Unions. 



No. 15.] SURVEY OF BRITISH LEGISLATION. 189 

Acts in such language as to incorporate into the law that con- 
struction of the rights, privileges, and immunities of trade 
unionism as had been popularly supposed for thirty years was 
already guaranteed by the statutes. 

1901 - 1906. Mr. Bell, the Secretary of the Amalgamated 
Society of Railway Servants, who was also a member of Parlia- 
ment, introduced a bill to legalize the conduct of trade disputes. 
But passage of legislation was postponed, as it had been when 
similar demands for the amendment of existing law were made 
on former occasions, pending a formal inquiry into the whole 
matter which, indeed, was seen to involve many fine points of 
law as well as of public policy. A royal commission was there- 
fore appointed in June, 1903, and its report, made to the King 
and transmitted to Parliament in 1906, is printed on the fore- 
going pages. Its recommendations resulted in a bill being 
brought in for the government by Sir J. Lawson Walton, the 
Attorney-General, intended to meet the demands of labor. It 
had a somewhat stormy passage through the House of Commons. 
In its original form it sought to define and limit conspiracy, to 
make peaceful picketing legal; and to safeguard trade union 
funds from claims for damages, in order to legally restore the 
status of the unions in this respect to the position of immunity 
which they had enjoyed for a generation prior to the revolu- 
tionary Taff Yale decision. 

The labor representatives in Parliament, however, were dis- 
satisfied with the bill in the form in which it was introduced, 
since the clause safeguarding trade union funds from being 
mulcted in damages provided that the union should not be made 
liable unless it could be proved that the action of a trade union 
ofiicial, on account of which damages were claimed, had been 
duly authorized by the central or executive body of the union. 
This was one of the important questions involved in the Taff 
Vale controversy, the strike on the Taff Vale Railway having 
been instigated and directed by a subordinate local ofiicial of 
the Amalgamated Society of Railway Servants, and directly 
contrary to the advice of the central executive body of that 
union, which, indeed, when the strike became an imminent cer- 
tainty, passed formal resolutions censuring the local leaders 
responsible for it. 



190 - STATISTICS OF LABOR. [Pub. Doc. 

The labor members of the House of Commons contended with 
great vigor that Parliament, in enacting the Trade Union Act 
of 1871, and the subsequent legislation of 1876, had intended 
to protect the funds of the unions absolutely, and that the 
pending bill, therefore, should be so worded as to provide beyond 
all doubt for the complete restoration to the unions of the 
immunity they had enjoyed for 30 years, and which they con- 
tended had been universally conceded as a rightful privilege 
before the House of Lords upset this construction of the law 
by their decision in the Taff Yale case. The advocates of the 
original bill defended it on the ground that to grant the unions 
specifically such universal immunity from liability would be 
to give them a special class privilege ; they felt that if legislation 
were enacted which would simply protect the unions from un- 
authorized action taken by subordinate officials it would be 
sufficient and would, in fact, cover such cases as the Taff Yale, 
in which the strike was not authorized by the executive body of 
the union itself. 

But the labor men stood out, and with the result that 
the clause granting complete protection and immunity for the 
unions from being sued in respect of any " tortious act '^ was 
incorporated in the government's bill. The Conservative party 
continued to attack the measure, but it finally weathered its 
stormy passage and was sent up to the Lords. 

Thereupon, Mr. Balfour, who had vigorously opposed the 
bill, urged the Lords to pass it on the ground that it was 
demanded by public opinion and that its rejection would be 
exceedingly impolitic. The Conservative majority of the Upper 
House felt no greater enthusiasm for the measure than had the 
Conservatives in the Commons, but it nevertheless passed and 
received the royal assent December 22, 1906.^ This act (6 
Edw. YII, Chap. 47), which was to take effect July 1, 1907, 
and is, therefore, now the law of Great Britain, is reviewed by 
The Board of Trade Labour Gazette (London, January, 1907), 
as follows : — 

The Trade Disputes Act, 1906, relates to " any dispute between em- 
ployers and workmen, or between workmen and workmen, which is 

1 Bulletin No. 70 (May, 1907) of the United States Bureau of Labor contains a History 
of British Labor Legislation, by A. Maurice Low; see also article on British Legislation in 
1906, in the Yale Review, February, 1907. 



Xo. 15.] SURVEY OF BRITISH LEGISLATION. 191 

connected with the employment or non-emplojniient or the terms of the 
employment, or with the conditions of labour, of any person, and the 
expression ' workmen ' means all persons employed in trade or industrj^, 
whether or not in the employment of the employer with whom a trade 
dispute arises." The Act makes an important change in the law re- 
lating to conspiracy. By the common law persons who agTee together 
to do an act may often be indicted for the crime of conspiracy, or sued 
for damages, in cases where the doing of the act by a single person 
would not be a crime or actionable. The Conspiracy and Protection of 
Property Act, 1875, provided that an agreement by two or more per- 
sons to do an act m furtherance or contemplation of a trade dispute 
should not be indictable as a conspiracy if such acts committed by one 
person would not be punishable as a crime. The new Act now goes 
one step further, and provides that " An act done in pursuance of an 
agreement or combination by two or more persons shall, if done in con- 
templation or furtherance of a trade dispute, not be actionable unless 
the act, if done without any such agreement or combination, would be 
actionable." And it is further provided that " an action against a 
trade union, whether of workmen or masters, or against any members 
or officials thereof on behalf of themselves and all other membei's of 
the trade union in respect of any tortious act alleged to have been com- 
mitted hj or on behalf of the trade union, shall not be entertamed by 
any court." It will be seen at once that these two provisions will pre- 
vent the recurrence of actions such as have occupied the time of the 
courts during the last few years, in which damages have been claimed 
against trade unions and their officials for conspiracy, inducing em- 
ployers to dismiss workmen, &c. The Taff Yale Railway case decided 
that a registered trade union may be sued. This Act now provides that 
a trade union may not be sued in tort, but it leav^ a union liable to be 
sued in contract. It is further to be noticed that " an act done by a 
person in contemplation or furtherance of a trade dispute shall not be 
actionable on the ground only that it uiduces some other person to 
break a contract of employment or that it is an interference with the 
trade, business, or employment of some other person, or with the right 
of some other person to dispose of his capital or his labour as he wills." 
The Act also expressly legalises peaceful picketing for the purpose of 
obtaining information, or of persuading any person to work or abstain 
from working. 

(The text of the Tirade Disputes Act is given in full on pages 
219, 220, and 221 of this report.) 



192 STATISTICS OF LABOR. [Pub. Doc. 



III. 

TEXT OF PEINCIPAL ACTS AFFECTING THE LEGAL 
STATUS OF BEITISIT TEADE IJmONS. 

[34 & 35 YICT.] Trade Unions. 
Chapter 31. 

An Act to amend the Law relating to Trade Unions. [29th 
June 1871.] 

Be it enacted by the Queen^s most Excellent Majesty, by and 
with the advice and consent of the Lords Spiritual and Temporal, 
and Commons, in this present Parliament assembled, and by the 
authority of the same, as follows: 

Preliminary. 

1. This Act may be cited as " The Trade Union Act, 1871." 

Criminal Provisions. 

2. The purposes of any trade union shall not, by reason merely 
that they are in restraint of trade, be deemed to be unlawful, so 
as to render any member of such trade union liable to criminal 
prosecution for conspiracy or otherwise. 

3. The purposes of any trade union shall not, by reason merely 
that they are in restraint of trade, be unlawful so as to render 
void or voidable any agreement or trust. 

4. Nothing in this Act shall enable any court to entertain any 
legal proceeding instituted with the object of directly enforcing 
or recovering damages for the breach of any of the following agree- 
ments, namely, 

1. Any agreement between members of a trade union as such, 

concerning the conditions on which any members for the 
time being of such trade union shall or shall not sell 
their goods, transact business, employ or be employed: 

2. Any agreement for the payment by any person of any sub- 

scription or penalty to a trade union: 

3. Any agreement for the application of the funds of a trade 

union, — 

(a.) To provide benefits to members; or, 

(&.) To furnish contributions to any employer or work- 
man not a member of such trade union, in con- 
sideration of such employer or workman acting in 
conformity with the rules or resolutions of such 
trade union; or, 

(c.) To discharge any fine imposed upon any person by 
sentence of a court of justice; or. 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 193 

4. Any agreement made between one trade union and another ; 

or, 

5. Any bond to secure the performance of any of the above- 

mentioned agreements. 
But nothing in this section shall be deemed to constitute 
any of the above-mentioned agreements unlawful. 

5. The following Acts, that is to say, 

(1.) The Friendly Societies Acts, 1855 and 1858, and the 
Acts amending the same; 

(2.) The Industrial and Provident Societies Act, 1867> and 
any Act amending the same; and 

(3.) The Companies Acts, 1862 and 1867. 
shall not apply to any trade union, and the registration of any trade 
union under any of the said Acts shall be void, and the deposit of 
the rules of any trade imion made un^er the Friendly Societies 
Acts, 1855 and 1858, and the Acts amending the same, before the 
passing of this Act, shall cease to be of any effect. 

Registered Trade Unions. 

6. Any seven or more members of a trade union may by sub- 
scribing their names to the rules of the union, and otherwise com- 
plying with the provisions of this Act with respect to registry, 
register such trade union under this Act, provided that if anyone 
of the purposes of such trade union be unlawful such registration 
shall be void. 

7. It shall be lawful for any trade union registered under this 
Act to purchase or take upon lease in the names of the trustees for 
the time being of such union any land not exceeding one acre, and 
to sell, exchange, mortgage, or let the same, and no purchaser, 
assignee, mortgagee, or tenant shall be bound to inquire whether 
the trustees have authority for any sale, exchange, mortgage, or 
letting, and the receipt of the trustees shall be a discharge for the 
money arising therefrom; and for the purpose of this section every 
branch of a trade union shall be considered a distinct union. 

8. All real and personal estate whatsoever belonging to any 
trade union registered under this Act shall be vested in the trustees 
for the time being of the trade union appointed as provided by 
this Act, for the use and benefit of such trade union and the mem- 
bers thereof, and the real or personal estate of any branch of a 
trade union shall be vested in the trustees of such branch, and be 
under the control of such trustees, their respective executors or 
administrators, according to their respective claims and interests, 
and upon the death or removal of any such trustees the same shall 
vest in the succeeding trustees for the same estate and interest as 
the former trustees had therein, and subject to the same trusts, 
without any conveyance or assignment whatsoever, save and except 



194 STATISTICS OF LABOR. [Pub. Doc. 

in the case of stocks and secnrities in the public funds of Great 
Britain and Ireland, which shall be transferred into the names of 
such new trustees; and in all actions, or suits, or indictments, or 
summary proceedings before any court of summary jurisdiction 
touching or concerning any such property, the same shall be stated 
to be the property of the person or persons for the time being hold- 
ing the said office of trustee, in their proper names, as trustees of 
such trade union, without any further description. 

9. The trustees of any trade union registered under this Act, or 
any other officer of such trade union who may be authorized so to 
do by the rules thereof, are hereby empowered to bring or defend, 
or cause to be brought or defended any action, suit, prosecution, or 
complaint in any court of law or equity, touching or concerning 
the property, right, or claim to property of the trade union; and 
shall and may, in all cases ^concerning the real or personal property 
of such trade union, sue and be sued, plead and be impleaded, in any 
court of law or equity, in their proper names, without other de- 
scription than the title of their office; and no such action, suit, 
prosecution, or complaint shall be discontinued or shall abate by 
the death or removal from office of such persons or any of them, 
but the same shall and may be proceeded in by their successor or 
successors as if such death, resignation, or removal had not taken 
place; and such successors shall pay or receive the like costs as if 
the action, suit, prosecution, or complaint had been commenced in 
their names for the benefit of or to be reimbursed from the funds 
of such trade union, and the summons to be issued to such trustee 
or other officer may be served by leaving the same at the registered 
office of the trade union. 

10. A trustee of any trade union registered under this Act shall 
not be liable to make good any deficiency which may arise or hap- 
pen in the funds of such trade union, but shall be liable only for 
the moneys which shall be actually received by him on account of 
such trade union. 

11. Every treasurer or other officer of a trade union registered 
under this Act, at such times as by the rules of such trade union he 
should render such account as hereinafter mentioned, or upon being 
required so to do, shall render to the trustees of the trade union, 
or to the members of such trade union, at a meeting of the trade 
union, a just and true account of all moneys received and paid by 
him since he last rendered the like account, and of the balance 
then remaining in his hands, and of all bonds or securities of such 
trade union, which account the said trustees shall cause to be- 
audited by some fit and proper person or persons by them to be 
appointed ; and such treasurer if thereunto required, upon the said 
account being audited, shall forthwith hand over to the said trustees: 
the balance which on such audit appears to be due from him, and 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 195 

shall alsO;, if required, hand over to such trustees all securities and 
effects, books, papers, and property of the said trade union in his 
hands or custody; and if he fail to do so the trustees of the said 
trade union may sue such treasurer in any competent court for the 
balance appearing to have been due from him upon the account 
last rendered by him, and for all the moneys since received by him 
on account of the said trade union, and for the securities and 
effects, books, papers, and property in his hands or custody, leav- 
ing him to set off in such action the sums, if any, which he may 
have since paid on account of the said trade union; and in such 
action the said trustees shall be entitled to recover their full cost 
of suit, to be taxed as between attorney and client. 

12. If any officer, member, or other person being or represent- 
ing himself to be a member of a trade union registered under this 
Act, or the nominee, executor, administrator, or assignee of a mem- 
ber thereof, or any person whatsoever, by false representation or 
imposition obtain possession of any moneys, securities, books, 
papers, or other effects of such trade union, or, having the same 
in his possession, wilfully withhold or fraudulently misapply the 
same, or wilfully apply any part of the same to purposes other 
than those expressed or directed in the rules of such trade union, 
or any part thereof, the court of summary jurisdiction for the 
place in which the registered office of the trade union is situate 
upon a complaint made by any person on behalf of such trade 
union, or by the registrar, or in Scotland at the instance of the 
procurator fiscal of the court to which such complaint is compe- 
tently made, or of the trade union, with his concurrence, may, by 
summary order, order such officer, member, or other person to 
deliver up all such moneys, securities, books, papers, or other effects 
to the trade union, or to repay the amount of money applied im- 
properly, and to pay, if the court think fit, a further sum of money 
not exceeding twenty pounds, together with costs not exceeding 
twenty shillings; and, in default of such delivery of effects, or 
repayment of such amount of money, or payment of such penalty 
and costs aforesaid, the said court may order the said person so 
convicted to be imprisoned, with or without hard labor, for any 
time not exceeding three months: Provided, that nothing herein 
contained shall prevent the said trade union, or in Scotland Her 
Majesty's Advocate, from proceeding by indictment against the 
said party ; provided also, that no person shall be proceeded against 
by indictment if a conviction shall have been previously obtained 
for the same offence under the provisions of this Act. 

Registry of Trade Union. 

13. With respect to the registry, under this Act, of a trade 
union, and of the rules thereof, the following provisions shall have 
effect : 



196 STATISTICS OF LABOR. [Pub. Doc. 

(1.) An application to register the trade union and printed 
copies of the rnles, together with a list of the titles 
and names of the officers, shall be sent to the registrar 
under this Act: 

(2.) The registrar, upon being satisfied that the trade union 
has complied with the regulations respecting registry 
in force under this Act, shall register such trade union 
and such rules: 

(3.) No trade union shall be registered under a name identi- 
cal with that by which any other existing trade union 
has been registered, or so nearly resembling such name 
as to be likely to deceive the members or the public : 

(4.) Where a trade union applying to be registered has been 
in operation for more than a year before the date of 
such application, there shall be delivered to the regis- 
trar before the registry thereof a general statement of 
the receipts, funds, effects, and expenditure of such 
trade union in the same form, and showing the same 
particulars as if it were the annual general statement 
required as herein-after mentioned to be transmitted 
annually to the registrar: 

(5.) The registrar upon registering such trade union shall 
issue a certificate of registry, which certificate unless 
proved to have been withdrawn or cancelled, shall be 
conclusive evidence that the regulations of this Act 
with respect to registry have been complied with: 

(6.) One of Her Majesty's Principal Secretaries of State may 
from time to time make regulations respecting regis- 
try under this Act, and respecting the seal (if any) to 
be used for the purpose of such registry and the forms 
to be used for such registry, and the inspection of doc- 
uments kept by the registrar under this Act, and 
respecting the fees, if any, to be paid on registry, not 
exceeding the fees specified in the second schedule to 
this Act, and generally for carrying this Act into 
effect. 

14. With respect to the rules of a trade union registered under 
this Act, the following provisions shall have effect: 

(1.) The rules of every such trade union shall contain pro- 
visions in respect of the several matters mentioned in 
the first schedule to this Act : 

(2.) A copy of the rules shall be delivered by the trade union 
to every person on demand on payment of a sum not 
exceeding one shilling. 

15. Every trade union registered under this Act shall have a 
registered office to which all communications and notices may be 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 197 

addressed; if any trade union under this Act is in operation for 
seven days without having such an office, such trade union and 
every officer thereof shall each incur a penalty not exceeding five 
pounds for every day during which it is so in operation. 

Notice of the situation of such registered office, and of any change 
therein, shall be given to the registrar and recorded by him: until 
such notice is given the trade union shall not be deemed to have 
complied with the provisions of this Act. 

16. A general statement of the receipts, funds, effects, and ex- 
penditure of every trade union registered under this Act shall be 
transmitted to the registrar before the first day of June in every 
year, and shall show fully the assets and liabilities at the date, 
and the receipts and expenditure during the year preceding the 
date to which it is made out, of the trade union; and shall show 
separately the expenditure in respect of the several objects of the 
trade union, and shall be prepared and made out up to such date, 
in such form, and shall comprise such particulars, as the registrar 
may from time to time require; and every member of, and de- 
positor in, any such trade union shall be entitled to receive, on 
application to the treasurer or secretary of that trade union, a 
copy of such general statement, without making any payment for 
the same. 

Together with such general statement there shall be sent to the 
registrar a copy of all alterations of rules and new rules and 
changes of officers made by the trade union during the year pre- 
ceding the date up to which the general statement is made out, 
and a copy of the rules of the trade union as they exist at that date. 

Every trade union which fails to comply with or acts in contra- 
vention of this section, and also every officer of the trade union so 
failing, shall each be liable to a penalty not exceeding five pounds 
for each offence. 

Every person who wilfully makes or orders to be made any false 
entry in or any omission from any such general statement, or in 
or from the return of such copies of rules or alterations of rules, 
shall be liable to a penalty not exceeding fifty pounds for each 
offence. 

17. The registrars of the friendly societies in England, Scot- 
land, and Ireland shall be the registrars under this Act. 

The registrars shall lay before Parliament annual reports with 
respect to the matters transacted by such registrars in pursuance 
of this Act. 

18. If any person with intent to mislead or defraud gives to 
any member of a trade union registered under this Act, or to any 
person intending or applying to become a member of such trade 
union, a copy of any rules, alterations or amendments of the same 
other than those respectively which exist for the time being, on the 



198 STATISTICS OF LABOR. [Pub. Doc. 

pretence that the same are the existing rules of such trade union, 
or that there are no other rules of such trade union, or if any per- 
son with the intent aforesaid gives a copy of any rules to any person 
on the pretence that such rules are the rules of a trade union regis- 
tered under this Act which is not so registered, every person so 
offending shall be. deemed gulty of a misdemeanor. 

Legal Proceedings. 

19. In England and Ireland all offences and penalties under 
this Act may be prosecuted and recovered in manner directed by 
The Summary Jurisdiction Acts. 

In England and Ireland summary orders under this Act may be 
made and enforced on complaint before a court of summary juris- 
diction in manner provided by The Summary Jurisdiction Acts 

Provided as follows: 

1. The " Court of Summary Jurisdiction," when hearing and 
determining an information or complaint, shall be constituted in 
some one of the following manners ; that is to say : 

(A.) In England. 

(1.) In any place within the jurisdiction of a metropoli- 
tan police magistrate or other stipendiary magis- 
trate, of such magistrate or his substitute : 
(2.) In the city of London, of the Lord Mayor or any 

alderman of the said city: 
(3.) In any other place, of two or more justices of the 
peace sitting in petty sessions. 
(B.) In Ireland. 

(1.) In the police district of Dublin metropolis, of a 

divisional justice: 
(3.) In any other place, of a resident magistrate. 
In Scotland all offences and penalties under this Act shall be 
prosecuted and recovered by the procurator fiscal of the county in 
the Sheriff Court, under the provisions of The Summary Procedure 
Act, 1864. 

In Scotland summary orders under this Act may be made and 
enforced on complaint in the Sheriff Court. 

All the jurisdictions, powers, and authorities necessary for giving 
effect to these provisions relating to Scotland are hereby conferred 
on the sheriffs and their substitutes. 

Provided that in England, Scotland, and Ireland — 

2. The description of any offence under this Act in the words of 
such Act shall be sujfficient in law. 

3. Any exception, exemption, proviso, excuse, or qualification, 
whether it does or not accompany the description of the offence in 



No. 15.] LEGAL STATUS OF TKADE UNIONS. 199 

this Act^ may be proved by the defendant, but need not be speci- 
fied or negatived in the information, and if so specified or negatived, 
no proof in relation to the matters so specified or negatived shall 
be required on the part of the informant or prosecutor. 

20. In England or Ireland, if any party feels aggrieved by any 
order or conviction made by a court of summary jurisdiction on 
determining any complaint or information under this Act, the 
party so aggrieved may appeal therefrom, su.bject to the conditions 
and regulations following: 

(1.) The appeal shall be made to some court of general or 
quarter sessions for the county or place in which the 
cause of appeal has arisen, holden not less than fifteen 
days and not more than four months after the decision 
of the court from which the appeal is made: 
(2.) The appellant shall, within seven days after the cause 
of appeal has arisen, give notice to the other party 
and to the court of summary jurisdiction of his in- 
tention to appeal, and of the ground thereof : 
(3.) The appellant shall immediately after such notice enter 
into a recognizance before a justice of the peace in the 
sum of ten pounds, with two sufficient sureties in the 
sum of ten pounds, conditioned personally to try such 
appeal, and to abide the judgment of the court thereon, 
and to pay such costs as may be awarded by the court : 
(4.) Where the appellant is in custody the justice may, if he 
think fit, on the appellant entering into such recogni- 
zance as aforesaid, release him from custody: 
(5.) The court of appeal may adjourn the appeal, and upon 
the hearing thereof they may confirm, reverse, or modify 
the decision of the court of summary jurisdiction, or 
remit the matter to the court of summary jurisdiction 
with the opinion of the court of appeal thereon, or 
make such other order in the matter as the court thinks 
just, and if the matter be remitted to the court of 
summary jurisdiction the said last-mentioned court 
shall thereupon re-hear and decide the information 
or complaint in accordance with the opinion of the 
said court of appeal. The court of appeal may also 
make such order as to costs to be paid by either party 
as the court thinks just. 
21. In Scotland it shall be competent to any person to appeal 
against any order or conviction under this Act to the next Circuit 
Court of Justiciar}^, or where there are no Circuit Courts to the High 
Court of Justiciary at Edinburgh, in the manner prescribed by and 



200 STATISTICS OF LABOR. [Pub. Doc. 

under the rules, limitations, conditions, and restrictions contained 
in the Act passed in the twentieth year of the reign of His Majesty 
King George the Second, chapter forty-three, in regard to appeals 
to Circuit Courts in matters criminal, as the same may be altered 
or amended by any Acts of Parliament for the time being in 
force. 

All penalties imposed under the provisions of this Act in Scot- 
land may be enforced in default of payment by imprisonment for 
a term to be specified in the summons or complaint, but not ex- 
ceeding three calendar months. 

All penalties imposed and recovered under the provisions of this 
Act in Scotland shall be paid to the sheriff clerk, and shall be ac- 
counted for and paid by him to the Queen's and Lord Treasurer's 
Eemembrancer on behalf of the crown. 

22. A person who is a master, or father, son, or brother of a 
master, in the particular manufacture, trade, or business in or in 
connection with which any offence under this Act is charged to 
have been committed shall not act as or as a member of a court of 
summary jurisdiction or appeal for the purposes of this Act. 

Definitions. 

23. In this Act. 

The term Summary Jurisdiction Acts means as follows : 

As to England, the Act of the session of the eleventh and twelfth 
years of the reign of Her present Majesty, chapter forty-three, in- 
titled " An Act to facilitate the performance of the duties of jus- 
tices of the peace out of sessions within England and "Wales with 
respect to summary convictions and orders,'' and any Acts amend- 
ing the same : 

As to Ireland, within the police district of Dublin metropolis, 
the Acts regulating the powers and duties of justices of the peace 
for such district, or of the police of such district, and elsewhere 
in Ireland, " The Petty Sessions (Ireland) Act, 1851," and any 
Act amending the same. 

In Scotland the term " misdemeanor " means a crime and offence. 

The term " trade union " means such combination, whether tem- 
porary or permanent, for regulating the relations between work- 
men and masters, or between workmen and workmen, or between 
masters and masters, or for imposing restrictive conditions on the 
conduct of any trade or business, as would, if this Act had not 
passed, have been deemed to have been an unlawful combination 
by reason of some one or more of its purposes being in restraint 
of trade : Provided that this Act shall not affect ■ — 

1. Any agreement between partners as to their own business; 

2. Any agreement between an employer and those employed 

by him as to such employment ; 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 201 

3. Any agreement in consideration of the sale of the good- 
will of a business or of instruction in any profession, 
trade, or handicraft. 

Repeal. 

24. The Trades Unions Funds Protection Act, 1869, is hereby 
repealed. 

Provided that this repeal shall not affect — 

(1.) Anything duly done or suffered imder the said Act: 
(2.) Any right or privilege acquired or any liability in- 
curred "under the said Act: 
(3.) Any penalty, forfeiture, or other punishment incurred 

in respect of any offence against the said Act: 
(4.) The institution of any investigation or legal proceed- 
ing or any other remedy for ascertaining, enforcing, 
recovering, or imposing any such liability, penalty, 
forfeiture, or punishment as aforesaid. 

SCHEDULES. 
First Schedule. 

Of matters to he provided for hy the Rules of Trade Unions Regis- 
tered under this Act. 

1. The name of the trade union and place of meeting for the 
business of the trade union. 

2. The whole of the objects for which the trade union is to be 
established, the purposes for which the funds thereof shall be ap- 
plicable, and the conditions under which any member may become 
entitled to any benefit assured thereby, and the fines and forfeit- 
ures to be imposed on any member of such trade union. 

3. The manner of making, altering, amending, and rescinding 
rules. 

4. A provision for the appointment and removal of a general 
committee of management, of a trustee or trustees, treasurer, and 
other oflScers. 

5. A provision for the investment of the funds, and for an an- 
nual or periodical audit of accounts. 

6. The inspection of the books and names of members of the 
trade union by every person having an interest in the funds of the 
trade union. 

Second Schedule. 

Maximum Fees. 

For registering trade unions 

For registering alterations in rules . 

For inspection of documents . 



£ 


s. 


d. 


1 











10 








2 


6 



202 STATISTICS OF LABOR. [Pub. Doc. 

[34 & 35 VICT.] Criminal Law Amendment {Violence, 

Threats, &c.) 

Chapter 32. 
An Act to amend the Criminal Law relating to Violence, Threats, 
and Molestation. [29th June 1871.] 

Be it enacted by the Qneen^s most Excellent Majesty, by and with 
the advice and consent of the Lords Spiritual and Temporal, and 
Commons, in this present Parliament assembled, and by the 
authority of the same, as follows : 

1. Every person who shall do any one or more of the following 
acts, that is to say, 

(1.) Use violence to any person or any property, 
(2.) Threaten or intimidate any person in such manner as 
would justify a justice of the peace, on complaint made 
to him, to bind over the person so threatening or in- 
timidating to keep the peace, in manner defined by 
this section, 
(3.) Molest or obstruct any person in manner defined by this 
section, with a view to coerce such person, — 

(1.) Being a master to dismiss or to cease to employ any 
workman, or being a workman to quit any emploj'^- 
ment or to return work before it is finished; 

(2.) Being a master not to offer or being a workman not to 
accept any employment or work; 

(3.) Being a master or workman to belong or not to belong 
to any temporary or permanent association or com- 
bination ; 

(4.) Being a master or workman to pay any fine or penalty 
imposed by any temporary or permanent association 
or combination; 

(5.) Being a master to alter the mode of carrying on his 
business, or the number or description of any per- 
sons employed by him, 

shall be liable to imprisonment, with or without hard labor, for a 
term not exceeding three months. 

A person shall, for the purposes of this Act, be deemed to molest 
or obstruct another person in any of the following cases; that is 
to say, 

(1.) If he persistently follow such person about from place to 

place : 
(2.) If he hide any tools, clothes, or other property owned or 
used by such person, or deprive him of or hinder him 
in the use thereof : 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 203 

(3.) If he watch or beset the house or other place where such 
person resides or works, or carries on business, or hap- 
pens to be, or the approach to such house or place, or if 
with two or more other persons he follow such person 
in a disorderly manner in or through an}^ street or road. 

Nothing in this section shall prevent any person from being liable 
under any other Act, or otherwise, to any other or higher punish- 
ment than is provided for any offence by this section, so that no 
person be punished twice for the same offence. 

Provided that no person shall be liable to any punishment for 
doing or conspiring to do any act on the ground that such act re- 
strains or tends to restrain the free course of trade, unless such act 
is one of the acts herein-before specified in this section, and is done 
with the object of coercing as herein-before mentioned. 

Legal Proceedings. 

2. All offences under this Act shall be prosecuted under the pro- 
visions of The Summary Jurisdiction Acts. 
Provided as follows : — 

1. The " Court of Summary Jurisdiction,^^ when hearing 

and determining an information or complaint, shall 
be constituted in some one of the following manners ; 
(that is to say,) 
(a.) In England, 

(i.) In any place within the jurisdiction of a met- 
ropolitan police magistrate or other stipend- 
iary magistrate, of such magistrate or his 
substitute : 
(ii.) In the city of London, of the Lord Mayor 

or any alderman of the said city: 
(iii.) In any other place, of two or more justices 
of the peace sitting in petty sessions. 
(&.) In Scotland, of the sheriff of the county or his sub- 
stitute. 
(c.) In Ireland. 

(i.) In the police district of Dublin metropolis, 

of a divisional justice: 
(ii.) In any other place, of a resident magistrate. 

2. The description of any offence under this Act in the 

words of such Act shall be sufficient in law. 

3. Any exception, exemption, proviso, excuse, or qualifica- 

tion, whether it does or not accompany the descrip- 
tion of the offence in this Act, may be proved by the 
defendant, but need not be specified or negatived 



204 STATISTICS OF LABOR. [Pub. Doc. 

in the information, and if so specified or negatived, 
no proof in relation to the matters so specified or 
negatived shall be required on the part of the in- 
formant or prosecutor. 

3. In England and Ireland, if any party feels aggrieved by any 
order or conviction made by a court of summary jurisdiction on 
determining any complaint or information under this Act, the 
party so aggrieved may appeal therefrom, subject to the conditions 
and regulations following: 

(1.) The appeal shall be made to some court of general or 

quarter sessions for the county or place in which the 

cause of appeal has arisen, holden not less than fifteen 

days and not more than four months after the deci- 

' sion of the court from which the appeal is made : 

(2.) The appellant shall, within seven days after the cause of 
appeal has arisen, give notice to the other party and 
to the court of summary jurisdiction of his intention 
to appeal, and of the ground thereof : 

(3.) The appellant shall immediately after such notice enter 
into a recognizance in the sum of ten pounds before 
a justice of the peace, with two sufficient sureties in 
the sum of ten pounds, conditioned personally to try 
such appeal, and to abide the judgment of the court 
thereon, and to pay such costs as may be awarded by 
the court: 

(4.) Where the appellant is in custody the justice may, if he 
think fit, on the appellant entering into such recog- 
nizance as aforesaid, release him from custody: 

(5.) The court of appeal may adjourn the appeal, and upon the 
hearing thereof they may confirm, reverse, or modify 
the decision of the court of summary jurisdiction, or 
remit the matter to the court of summary jurisdiction 
with the opinion of the court of appeal thereon, or 
make such other order in the matter as the court 
thinks just, and, if the matter be remitted to the 
court of summary jurisdiction, the said last-mentioned 
court shall thereupon re-hear and decide the informa- 
tion or complaint in accordance with the opinion of 
the said court of appeal. The court of appeal may 
also make such order as to costs to be paid by either 
party as the court thinks just. 

4. In Scotland it shall be competent to any person to appeal 
against any order or conviction under this Act to the next Circuit 
Court of Justiciary, or where there are no Circuit Courts to the 
High Court of Justiciary at Edinburgh, in the manner prescribed 
by and under the rules, limitations, conditions, and restrictions 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 205 

contained in the Act passed in the twentieth year of the reign of 
His Majesty King George the Second, chapter forty-three, in re- 
gard to appeals to Circuit Conrts in matters criminal, as the same 
may be altered or amended by any Acts of Parliament for the 
time being in force. 

All offences under this Act shall be prosecuted by the procurator 
fiscal of the county. 

5. A person, who is master, father, son, or brother of a master 
in the particular manufacture, trade, or business in or in connec- 
tion with which any offence under this Act is charged to have been 
committed shall not act as or as a member of a court of summary 
jurisdiction or appeal for the purposes of this Act. 

Definitions. 

6. In this Act — 

The term Summary Jurisdiction Acts shall mean as follows: 
As to England, the Act of the session of the eleventh and twelfth 
vears of the reign of Her present Majesty, chapter forty- three, in- 
titled '^ An Act to facilitate the performance of the duties of Jus- 
tices of the Peace out of Sessions within England and Wales 
with respect to Summary Convictions and Orders,^^ and any Acts 
amending the same; 

As to Scotland, "The Summary Procedure Act, 1864;'' 

As to Ireland, within the police district of Dublin metropolis, 
the Acts regulating the powers and duties of justices of the peace 
of such district or of the police of such district, and elsewhere in 
Ireland, " The Petty Sessions (Ireland) Act, 1851," and any Act 
amending the same. 

7. The Acts mentioned in the schedule to this Act are hereby 
repealed to the extent in the third column of that schedule men- 
tioned : 

Provided, that the repeal enacted in this Act shall not affect — 

(1.) Anything duly done or suffered under any enactment 
hereby repealed; 

(2.) Any right or privilege acquired or any liability in- 
curred under any enactment hereby repealed; 

(3.) Any penalty, forfeiture, or other punishment incurred 
in respect of any offence against any enactment 
hereby repealed; 

(4.) The institution of any investigation or legal proceed- 
ing or any other remedy for ascertaining, enforc- 
ing, recovering, or imposing any such liability, 
penalty, forfeiture, or punishment as aforesaid. 



20() 



STATISTICS OF LABOR. [Pub. Doc. 





Schedule. 




Session and Chapter. 


Title 


Extent of Repeal 


6 Geo. 4. c. 129, . 
22 Vict. c. 34, 

24 & 25 Vict. c. 100, . 


An Act to repeal the Laws relating to the Com- 
bination of Workmen, and to make other pro- 
visions in lieu thereof. 

An Act to amend and explain an Act of the 
sixth year of the reign of King George the 
Fourth to repeal the Laws relating to the Com- 
bination of Workmen, and to make other pro- 
visions in lieu thereof. 

An Act to consolidate and amend the Statute 
Law of England and Ireland relating to 
Offences against the Person. 


The whole Act. 
The whole Act. 

Section forty-one. 



[38 & 39 VICT.] Conspiracy and Protection of Property. 

Chapter 86. 

An Act amending the Law relating to Conspiracy, and to the 
Protection of Property, and for other purposes. [13th August 
1875.] 

Be it enacted by the Queen's Most Excellent Majesty, by and 
with the advice and consent of the Lords Spiritual and Temporal, 
and Commons, in this present Parliament assembled, and by the 
authority of the same as follows : 

1. This Act may be cited as the Conspiracy, and Protection of 
Property Act, 1875. 

2. This Act shall come into operation on the first day of Septem- 
ber one thousand eight hundred and seventy-five. 

Conspiracy, and Protection of Property. 

3. An agreement or combination by two or more persons to do 
or procure to be done any act in contemplation or furtherance of 
a trade dispute between employers and workmen shall not be in- 
dictable as a conspiracy if such act committed by one person would 
not be punishable as a crime. 

Nothing in this section shall exempt from punishment any per- 
sons guilty of a conspiracy for which a punishment is awarded by 
any Act of Parliament. 

Nothing in this section shall affect the law relating to riot, un- 
lawful assembly, breach of the peace, or sedition, or any offence 
against the State or the Sovereign. 

A crime for the purposes of this section means an offence punish- 
able on indictment, or an offence which is punishable on summary 
conviction, and for the commission of which the offender is liable 
under the statute making the offence punishable to be imprisoned 
either absolutely or at the discretion of the court as an alternative 
for some other punishment. 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 207 

"Where a person is convicted of any such agreement or combina- 
tion as aforesaid to do or procure to be done an act which is pun- 
ishable only on summary conviction, and is sentenced to imprison- 
ment, the imprisonment shall not exceed three months, or such 
longer time, if any, as may have been prescribed by the statute for 
the punishment of the said act when committed by one person. 

4. Where a person employed by a municipal authority or by any 
company or contractor upon whom is imposed by Act of Parlia- 
ment the duty, or who have otherwise assumed the duty of supply- 
ing any city, borough, town, or place, or any part thereof, with gas 
or water, wilfully and maliciously breaks a contract of service with 
that authority or company or contractor, knowing or having reason- 
able cause to believe that the probable consequences of his so doing, 
either alone or in combination with others, will be to deprive the 
inhabitants of that city, borough, town, place, or part, wholly or to 
a great extent of their supply of gas or water, he shall on convic- 
tion thereof by a court of summary jurisdiction or on indictment 
as hereinafter mentioned, be liable either to pay a penalty not ex- 
ceeding twenty pounds or to be imprisoned for a term not exceed- 
ing three months, with or without hard labor. 

Every such municipal authority, company, or contractor as is 
mentioned in this section shall cause to be posted up at the gas- 
works or Avaterworks, as the case may be, belonging to such au- 
thority or company or contractor, a printed copy of this section in 
some conspicuous place where the same may be conveniently read 
by the persons employed, and as often as such copy becomes de- 
faced, obliterated, or destroyed, shall cause it to be renewed with 
all reasonable despatch. 

If any municipal authority or company or contractor make de- 
fault in complying with the provisions of this section in relation 
to such notice as aforesaid, they or he shall incur on summary con- 
viction a penalty not exceeding five pounds for every day during 
which such default continues, and every person who unlawfully 
injures, defaces, or covers up any notice so posted up as aforesaid 
in pursuance of this Act, shall be liable on summary conviction 
to a penalty not exceeding forty shillings. 

5. Where any person wilfully and maliciously breaks a contract 
of service or of hiring, knowing or having reasonable cause to be- 
lieve that the probable consequences of his so doing, either alone 
or in combination with others, will be to endanger human life, or 
cause serious bodily injury, or to expose valuable property whether 
real or personal to destruction or serious injury, he shall on con- 
viction thereof by a court of summary jurisdiction, or on indict- 
ment as herein-after mentioned, be liable either to pay a penalty 
not exceeding twenty pounds, or to be imprisoned for a term not 
exceeding three months, with or without hard labor. 



208 STATISTICS OF LABOR. [Pub. Doc. 



Miscellaneous. 

6. Where a master, being legally liable to provide for his ser- 
vant or apprentice necessary food, clothing, medical aid or lodg- 
ing, wilfully and without lawful excnse refuses or neglects to pro- 
vide the same, whereby the health of the servant or apprentice is 
or is likely to be seriously or permanently injured, he shall on sum- 
mary conviction be liable either to pay a penalty not exceeding 
twenty pounds, or to be imprisoned for a term not exceeding six 
months, with or without hard labor. 

7. Every person who, with a view to compel any other person to 
abstain from doing or to do any act which such other person has 
a legal right to do or abstain from doing, wrongfully and without 
legal authority, — 

1. Uses violence to or intimidates such other person or his 

wife or children, or injures his property; or, 

2. Persistently follows such other person about from place to 

place; or, 

3. Hides any tools, clothes, or other property owned or used 

by such other person, or deprives him of or hinders him 
in the use thereof; or, 

4. Watches or besets the house or other place where such other 

person resides, or works, or carries on business or hap- 
pens to be, or the approach to such house or place; or, 

5. Follows such other person with two or more other persons 

in a disorderly manner in or through any street or road, 
shall, on conviction thereof by a court of summary jurisdiction, or 
on indictment as herein-after mentioned, be liable either to pay a 
penalty not exceeding twenty pounds, or to be imprisoned for a 
term not exceeding three months, with or without hard labor. 

Attending at or near the house or place where a person resides, 
or works, or carries on business, or happens to be, or the approach 
to such house or place, in order merely to obtain or communicate 
information, shall not be deemed a watching or besetting within 
the meaning of this section. 

8. Where in any Act relating to employers or worlmien a pecu- 
niary penalty is imposed in respect of any offence under such Act, 
and no power is given to reduce such penalty, the Justices or court 
having jurisdiction in respect of such offence may, if they think 
it just so to do, impose by way of penalty in respect of such offence 
any sum not less than one-fourth of the penalty imposed by such 
Act. 

Legal Proceedings. 

9. Where a person is accused before a court of summary juris- 
diction of any offence made punishable by this Act and for which 
a penalty amounting to twenty pounds, or imprisonment, is im- 



No. 15.] LEGAL STATUS OF TKADE UNIONS. 209 

posed, the accused may, on appearing before the court of summary 
jurisdiction, declare that he objects to being tried for such offence 
by a court of summary jurisdiction, and thereupon the court of 
summary jurisdiction may deal with the case in all respects as if 
the accused were charged with an indictable offence and not an 
offence punishable on summary conviction, and the offence may be 
prosecuted on indictment accordingly. 

10. Every offence under this Act which is made punishable on 
conviction by a court of summary jurisdiction or on summary con- 
viction, and every penalty under this Act recoverable on summary 
conviction, may be prosecuted and recovered in manner provided 
by the Summary Jurisdiction Act. 

11. Provided, that upon the hearing and determining of any 
indictment or information under sections four, five and six of this 
Act, the respective parties to the contract of service, their hus- 
bands or wives, shall be deemed and considered as competent wit- 
nesses. 

12. In England or Ireland, if any party feels aggrieved by any 
conviction made by a court of summary jurisdiction on determin- 
ing any information under this Act, the party so aggrieved may 
appeal therefrom, subject to the conditions and regulations follow- 
ing: 

(1.) The appeal shall be made to some court of general or 
quarter sessions for the county or place in which the 
cause of appeal has arisen, holden not less than fifteen 
days and not more than four months after the decision 
of the court from which the appeal is made : 

(2.) The appellant shall, within seven days after the cause 
of appeal has arisen, give notice to the other party and 
to the court of summary jurisdiction of his intention 
to appeal, and of the ground thereof: 

(3.) The appellant shall immediately after such notice enter 
into a recognizance before a justice of the peace, with 
or without sureties, conditioned personally to try such 
appeal, and to abide the judgment of the court thereon, 
and to pay such costs as may be awarded by the court : 

(4.) Wh^ere the appellant is in custody the justice may, if he 
think fit, on the appellant entering into such recogni- 
zance as aforesaid, release him from custody: 

(5.) The court of appeal may adjourn the appeal, and upon 
the hearing thereof they may confirm, reverse or modify 
the decision of the court of summary jurisdiction, or 
remit the matter to the court of summary jurisdiction 
with the opinion of the court of appeal thereon, or 
make such other order in the matter as the court 
thinks just, and if the matter be remitted to the 



210 STATISTICS OF LABOR. [Pub. Poc. 

court of summary jurisdiction the said last-mentioned 
court shall thereupon re-hear and decide the informa- 
tion in accordance with the opinion of the said court 
of appeal. The court of appeal may also make such 
order as to costs to be paid by either party as the 
court thinks just. 

Definitions. 

13. In this Act^ — 

The expression " the Summary Jurisdiction Act " means the 
Act of the session of the eleventh and twelfth years of the reign 
of Her present Majesty, chapter forty- three, intitled " An Act to 
facilitate the performance of the duties of justices of the peace out 
of sessions within England and Wales with respect to summary 
convictions and orders '^ inclusive of any Acts amending the same ; 
and 

The expression " court of summary jurisdiction " means — 
(1.) As respects the city of London, the Lord Mayor or any 
alderman of the said city sitting at the Mansion House 
or Guildhall justice room; and 
(2.) As respects any police court division in the Metropolitan 
police district, any Metropolitan police magistrate sit- 
ting at the police court for that division; and 
(3.) As respects any city, town, liberty, borough, place, or 
district for which a stipendiary magistrate is for the 
time being acting, such stipendiary magistrate sitting 
at a police court or other place appointed in that be- 
half ; and 
(4.) Elsewhere, any justice or justices of the peace to whom 
jurisdiction is given by the Summary Jurisdiction Act : 
Pro^dded that, as respects any case within the cogni- 
zance of such justice or justices as last aforesaid, an 
information under this Act shall be heard and deter- 
mined by two or more justices of the peace in petty 
sessions sitting at some place appointed for holding 
petty sessions. 
Nothing in this section contained shall restrict the jurisdiction 
of the Lord Mayor or any alderman of the city of London or of 
any metropolitan police or stipendiary magistrate, in respect of any 
act or jurisdiction which may now be done or exercised by him out 
of court. 

14. The expression "municipal authority" in this Act means 
any of the following authorities, that is to say, the Metropolitan 
Board of Works, the Common Council of the City of London, the 
Commissioners of Sewers of the city of London, the town council 
of any borough for the time being subject to the Act of the session 
of the fifth and sixth years of the reign of King William the Fourth, 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 211 

chapter seventy-six, intitled " An Act to provide for the Regulation 
of Municipal Corporations in England and Wales/' and any Act 
amending the same, any commissioners, trustees or other persons 
invested by any local Act of Parliament with powers of improving, 
cleansing, lighting, or paving any town, and any local board. 

Any municipal authority or company or contractor who has 
obtained authority by or in pursuance of any general or local Act 
of Parliament to supply the streets of any city, borough, town, or 
place, or of an}^ part thereof, with gas or which is required by or 
in pursuance of any general or local Act of Parliament to supply 
water on demand to the inhabitants of any city, borough, town, or 
place, or any part thereof, shall for the purposes of this Act be 
deemed to be a municipal authority or company or contractor upon 
whom is imposed by Act of Parliament the duty of supplying such 
city, borough, town, or place, or part thereof, with gas or water. 

15. The word " maliciously '^ used in reference to any offence 
under this Act shall be construed in the same manner as it is re- 
quired by the fifty-eighth section of the Act relating to malicious 
injuries to property, that is to say, the Act, of the session of the 
twenty-fourth and twenty-fifth years of the reign of Her present 
Majesty, chapter ninety-seven to be construed in reference to any 
offence committed under such last-mentioned Act. 

Saving Clause. 

16. Nothing in this Act shall apply to seamen or to apprentices 
to the sea service. 

Bepeal. 

17. On and after the commencement of this Act, there shall be 
repealed : — 

I. The Act of the session of the thirty-fourth and thirty-fifth 
years of the reign of Her present Majesty, chapter thirty-two, in- 
titled " An Act to amend the Criminal Law relating to violence, 
threats, and molestation ; " and 

II. " The Master and Servant Act, 1867,^' and the enactments 
:specified in the First Schedule to that Act, with the exceptions 
following as to the enactments in such Schedule (that is to say) ; 

(1.) Except so much of sections one and two of the Act passed 
in the thirty-third year of the reign of King George 
the Third, chapter fifty-five, intitled " An Act to au- 
thorize justices of the peace to impose fines upon con- 
stables, overseers, and other peace or parish officers for 
neglect of duty, and on masters of apprentices for ill- 
usage of such their apprentice; and also to make pro- 
vision for the execution of warrants of distress granted 
by magistrates,'^ as relates to constables, overseers, and 
other peace or parish officers; and 



212 STATISTICS OF LABOR. [Pub. Doc. 

(2.) Except so much of sections five and six of an Act passed 
in the fifty-ninth year of the reign of King George the 
Third, chapter ninety-two, intitled " An Act to en- 
able justices of the peace in Ireland to act as such, in 
certain cases, out of the limits of the counties in which 
they actually are; to make provision for the execution 
of warrants of distress granted by them; and to au- 
thorize them to impose fines upon constables and other 
officers for neglect of duty, and on masters for ill-usage 
of their apprentices,^^ as relates to constables and other 
peace or parish officers; and 

(3.) Except the Act of the session of the fifth and sixth years 
of the reign of Her present Majesty, chapter seven, 
intitled " An Act to explain the Acts for the better 
regulation of certain apprentices ; ^' and 

(4.) Except sub-sections one, two, three, and five of section 
sixteen of " The Summary Jurisdiction (Ireland) Act, 
1851,^^ relating to certain disputes between employers 
and the persons employed by them; and 
III. Also there shall be repealed the following enactments mak- 
ing breaches of contract criminal, and relating to the recovery of 
wages by summary procedure (that is to say) ; 

(a.) An Act passed in the fifth year of the reign of Queen 
Elizabeth, chapter four, and intitled ^^ An Act touch- 
ing divers orders for artificers, laborers, servants of 
husbandry, and apprentices ; '^ and 

(&.) So much of section two of an Act passed in the twelfth 
year of King George the First, chapter thirty-four, 
and intitled "An Act to prevent unlawful combina- 
tion of workmen employed in the woolen manufactures, 
and for better payment of their wages,'' as relates to 
departing from service and quitting or returning work 
before it is finished; and 

(c.) Section twenty of an Act passed in the fifth year of King 
George the Third, chapter fifty-one, the title of which 
begins with the words " An Act for repealing several 
Laws relating to the manufacture of woolen cloth in 
the county of York," and ends with the words "for 
preserving the credit of the said manufacture at the 
foreign market ; " and 

(d.) An Act passed in the nineteenth year of King George the 
Third, chapter forty-nine, and intitled "An Act to 
prevent abuses in the payment of wages to persons 
employed in the bone and thread lace manufactory ; " 
and 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 213 

(e.) Sections eighteen and twenty-three of an Act passed in 
the session of the third and fourth years of Her present 
Majesty, chapter ninety-one, intitled " An Act for the 
more effectual prevention of frauds and abuses com- 
mitted by weavers, sewers, and other persons employed 
in the linen, hempen, union, cotton, silk, and woolen 
manufactures in Ireland, and for the better payment 
of their wages, for one year, and from thence to the 
end of the next session of Parliament ; " and 
(/.) Section seventeen of an Act passed in the session of the 
sixth and seventh years of Her present Majesty, chap- 
ter forty, the title of which begins with the words " An 
Act to amend the Laws,^^ and ends with the words 
'^ workmen engaged therein ; '' and 
(g.) Section seven of an Act passed in the session of the 
eighth and ninth years of Her present Majesty, chap- 
ter one hundred and twenty-eight, and intitled " An 
Act to make further regulations respecting the tickets 
of work to be delivered to silk weavers in certain cases." 
Provided that, — 

(1.) Any order for wages or further sum of compensa- 
tion in addition to wages made in pursuance of 
section sixteen of " The Summary Jurisdiction 
(Ireland) Act, 1851," may be enforced in like 
manner as if it were an order made by a court of 
summary jurisdiction in pursuance of the Em- 
ployers and Workmen Act, 1875, and not other- 
wise; and 
(2.) The repeal enacted by this section shall not affect — 
(a.) Any thing duly done or suffered, or any right or 
liability acquired or incurred under any enact- 
ment hereby repealed; or 
(&.) Any penalty, forfeiture, or punishment incurred 
in respect of any offence committed against any 
enactment hereby repealed; or 
(c.) Any investigation, legal proceeding, or remedy in 
respect of any such right, liability, penalty, for- 
feiture, or punishment as aforesaid; and any 
such investigation, legal proceeding, and remedy 
may be carried on as if this Act had not passed. 



214 STATISTICS OF LABOR. [Pub. Doc. 

Application of Act to Scotland. 

18. This Act shall extend to Scotland, with the modifications 
following; that is to say, 

(1.) The expression " mimicipal authority ^^ means the town 
council of any royal or parliamentary burgh, or the 
commissioners of police of any burgh, town, or popu- 
lous place under the provisions of the General Police 
and Improvement (Scotland) Act, 1862, or any local 
authority under the provisions of the Public Health 
(Scotland) Act, 1867: 

(2.) The expression "The Summary Jurisdiction Acf means 
the Summary Procedure Act, 1864, and any Acts 
amending the same : 

(3.) The expression "the court of summary jurisdiction" 
means the sheriff of the county or any one of his sub- 
stitutes. 

19. In Scotland the following provisions shall have effect in 
regard to the prosecution of offences, recovery of penalties and 
making of orders under this Act : 

(1.) Every offence under this Act shall be prosecuted, every 
penalty recovered, and every order made at the in- 
stance of the Lord Advocate, or of the Procurator 
Fiscal of the sheriff court: 

(2.) The proceedings may be on indictment in the Court of 
Justiciary in Edinburgh or on circuit or in a sheriff 
court, or may be taken summarily in the sheriff court 
under the provisions of the Summary Procedure Act, 
1864: 

(3.) Every person found liable on conviction to pay any 
penalty under this Act shall be liable, in default of 
payment within a time to be fixed in the conviction, 
to be imprisoned for a term, to be also fixed, therein, 
not exceeding two months, or until such penalty shall 
be sooner paid, and the conviction and warrant may 
be in the form of No. 3 of Schedule K. of the Sum- 
mary Procedure Act, 1864: 

(4.) In Scotland all penalties imposed in pursuance of this 
Act shall be paid to the clerk of the court imposing 
them, and shall by him be accounted for and paid to 
the Queen's and Lord Treasurer's Remembrancer, and 
be carried to the Consolidated Fund. 

20. In Scotland it shall be competent to any person to appeal 
against any order or conviction under this Act to the next circuit 
Court of Justiciary, or where there are no circuit courts to the 
High Court of Justiciary at Edinburgh, in the manner prescribed 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 215 

by and under the rules^ limitations, conditions, and restrictions 
contained in the Act passed in the twentieth year of the reign of 
His Majesty King George the Second, chapter forty-three, in re- 
gard to appeals to circuit courts in matters criminal, as the same 
may be altered or amended by any Acts of Parliament for the 
time being in force. 

Application of Act to Ireland. 

21. This Act shall extend to Ireland, with the modifications 
following; that is to say, 

The expression " The Summary Jurisdiction Act ^^ shall be 
construed to mean, as regards the police district of Dublin 
metropolis, the Acts regulating the powers and duties of 
justices of the peace for such district; and elsewhere in 
Ireland, the Petty Sessions (Ireland) Act, 1851, and any 
Act amending the same : 

The expression " court of summary jurisdiction '' shall be con- 
strued to mean any justice or justice of the peace, or other 
magistrate to whom jurisdiction is given by the Summary 
Jurisdiction Act : 

The court of summary jurisdiction, when hearing and deter- 
mining complaints under this Act, shall in the police dis- 
trict of Dublin metropolis be constituted of one or more of 
the divisional justices of the said district, and elsewhere in 
Ireland of two or more justices of the peace in petty ses- 
sions sitting at a place appointed for holding petty sessions : 

The expression " municipal authority " shall be construed to 
mean the town council of an}^ borough for the time being, 
subject to the Act of the session of the third and fourth 
years of the reign of Her present Majesty, chapter one hun- 
dred and eight, entitled " An Act for the Regulation of 
Municipal Corporations in Ireland,'' and any commissioners 
invested by any general or local Act of Parliament, with 
power of improving, cleansing, lighting, or paving any town 
or township. 



[39 & 40 VICT.] Trade Union Act (1871) Amendment. 

Chapter 22. 
An Act to amend the Trade Union Act, 1871. [30tli June 1876.] 
Whereas it is expedient to amend the Trade Union Act, 1871 : 
Be it therefore enacted by the Queen's most Excellent Majesty, 
by and with the advice and consent of the Lords Spiritual and 
Temporal, and Commons, in this present Parliament assembled, 
and by the authority of the same, as follows : 

1. This Act and the Trade Union Act, 1871, herein-after termed 



216 STATISTICS OF LABOR. [Pub. Doc. 

the principal Act, shall be construed as one Act, and may be cited 
together as the " Trade Union Acts, 1871 and 1876," and this Act 
may be cited separately as the " Trade Union Act Amendment Act, 
1876/' 

2. Notwithstanding anything in section five of the principal Act 
contained, a trade union, whether registered or unregistered, which 
insures or pays money on the death of a child under ten years of 
age shall be deemed to be within the provisions of section twenty- 
eight of the Friendly Societies Act, 1875. 

3. Whereas by section eight of the principal Act it is enacted 
that " the real or personal estate of any branch of a trade union shall 
be vested in the trustees of such branch : " The said section shall be 
read and construed as if immediately after the herein-before re- 
cited words there were inserted the words " or of the trustees of the 
trade union, if the rules of the trade union so provide/' 

4. When any person, being or having been a trustee of a trade 
union or of any branch of a trade union, and whether appointed 
before or after the legal establishment thereof, in whose name any 
stock belonging to such union or branch transferable at the Bank 
of England or Bank of Ireland is standing, either jointly with an- 
other or others, or solely, is absent from Great Britain or Ireland 
respectively, or becomes bankrupt, or files any petition, or executes 
any deed for liquidation of his affairs by assignment or arrange- 
ment, or for composition with his creditors, or becomes a lunatic, 
or is dead, or has been removed from his office of trustee, or if it 
be unknown whether such person is living or dead, the registrar, 
on application in writing from the secretary and three members of 
the union or branch, and on proof satisfactory to him, may direct 
the transfer of the stock into the names of any other persons as 
trustees for the union or branch; and such transfer shall be made 
by the surviving or continuing trustees, and if there be no such 
trustee, or if such trustees refuse or be unable to make such trans- 
fer, and the registrar so direct, then by the Accountant-General or 
Deputy or Assistant Accountant-General of the Bank of England 
or Bank of Ireland, as the case may be; and the Governors and 
Companies of the Bank of England and Bank of Ireland respec- 
tively are hereby indemnified for anything done by them or any 
of their officers in pursuance of this provision against any claim or 
demand of any person injuriously affected thereby. 

5. The jurisdiction conferred in the case of certain offences by 
section twelve of the principal Act upon the court of summary 
jurisdiction for the place in which the registered office of a trade 
union is situate may be exercised either by that court or by the 
court of summary jurisdiction for the place where the offence has 
been committed. 

6. Trade unions carrying or intending to carry on business in 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 217 

more than one country shall be registered in the country in which 
their registered office is situate; but copies of the rules of such 
unions, and of all amendments of the same, shall, when registered, 
be sent to the registrar of each of the other countries, to be re- 
corded by him, and until such rules be so recorded the union shall 
not be entitled to any of the privileges of this Act or the principal 
Act, in the country in which such rules have not been recorded, 
and until such amendments of rules be recorded the same shall not 
take effect in such country. 

In this section " country " means England, Scotland, or Ireland. 

7. Whereas by the " Life Assurance Companies Act, 1870," it 
is provided that the said Act shall not apply to societies registered 
under the Acts relating to Friendly Societies : The said Act (or 
the amending Acts) shall not apply nor be deemed to have applied 
to trade unions registered or to be registered under the principal 
Act. 

8. No certificate of registration of a trade union shall be with- 
drawn or cancelled otherwise than by the chief registrar of Friendly 
Societies, or in the case of trade unions registered and doing busi- 
ness exclusively in Scotland or Ireland, by the assistant registrar 
for Scotland or Ireland, and in the following cases : 

(1.) At the request of the trade union to be evidenced in such 
manner as such chief or assistant registrar shall from 
time to time direct: 
(2.) On proof to his satisfaction that a certificate of regis- 
tration has been obtained by fraud or mistake, or that 
the registration of the trade union has become void 
under section six of the Trade Union Act, 1871, or 
that such trade union has wilfully and after notice 
from a registrar whom it may concern, violated any 
of the provisions of the Trade Union Acts, or has 
ceased to exist. 
Not less than two months previous notice in writing, specifying 
briefly the ground of any proposed withdrawal or cancelling of cer- 
tificate (unless where the same is shown to have become void as 
aforesaid, in which case it shall be the duty of the chief or assistant 
registrar to cancel the same forthwith), shall be given by the chief 
or assistant registrar to a trade union before the certificate of regis- 
tration of the same can be withdrawn or cancelled (except at its 
request) . 

A trade union whose certificate of registration has been with- 
drawn or cancelled shall, from the time of such withdrawal or can- 
celling, absolutely cease to enjoy as such the privileges of a regis- 
tered trade union, but without prejudice to any liability actually 
incurred by such trade union, which may be enforced against the 
same as if such withdrawal or cancelling had not taken place. 



218 STATISTICS OF LABOR. [Pub. Doc. 

9. A person under the age of twenty-one, but above the age of 
sixteen, may be a member of a trade union, unless provision be made 
in the rules thereof to the contrary, and may, subject to the rules 
of the trade union, enjoy all the rights of a member except as 
herein provided, and execute all instriiments and give all acquit- 
tances necessary to be executed or given under the rules, but shall 
not be a member of the committee of management, trustee, or treas- 
urer of the trade union. 

10. A member of a trade union not being under the age of six- 
teen years may, by writing under his hand, delivered at, or sent to, 
the registered office of the trade union, nominate any person not 
being an officer or. servant of the trade union (unless such officer or 
servant is the husband, wife, father, mother, child, brother, sister, 
nephew, or niece of the nominator), to whom any moneys payable 
on the death of such member not exceeding iifty pounds shall be 
paid at his decease, and may from time to time revoke or vary such 
nomination by writing under his hand similarly delivered or sent; 
and on receiving satisfactory proof of the death of a nominator, 
the trade union shall pay to the nominee the amount due to the 
deceased member not exceeding the sum aforesaid. 

11. A trade union may, with the approval in writing of the chief 
registrar of Friendly Societies, or in the case of trade unions regis- 
tered and doing business exclusively in Scotland or Ireland, of the 
assistant registrar for Scotland or Ireland respectively, change its 
name by the consent of not less than two-thirds of the total number 
of members. 

No change of name shall affect any right or obligation of the 
trade union or of any member thereof, and any pending legal pro- 
ceedings may be continued by or against the trustees of the trade 
union or any other officer who may sue or be sued on behalf of such 
trade union notwithstanding its new name. 

12. Any two or more trade unions may, by the consent of not 
less than two-thirds of the members of each or every such trade 
union, become amalgamated together as one trade union, with or 
without any dissolution or division of the funds of such ' trade 
unions, or either or any of them; but no amalgamation shall prej- 
udice any right of a creditor of either or any union party thereto. 

13. Notice in writing of every change of name or amalgamation 
signed, in the case of a change of name, by seven members, and 
countersigned by the secretary of the trade union changing its 
name, and accompanied by a statutory declaration by such secre- 
tary that the provisions of this Act in respect of changes of name 
have been complied with, and in the case of an amalgamation signed 
by seven members, and countersigned by the secretary of each or 
every union party thereto, and accompanied by a statutory declara- 
tion by each or every such secretary that the provisions of this Act 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 219 

in respect of amalgamations have been complied with, shall be sent 
to the central office established by the Friendly Societies Act, 1875, 
and registered there, and until such change of name or amalgama- 
tion is so registered the same shall not take effect. 

14. The rules of every trade union shall provide for the manner 
of dissolving the same, and notice of every dissolution of a trade 
union under the hand of the secretary and seven members of the 
same, shall be sent within fourteen days thereafter to the central 
office herein-bef ore mentioned, or, in the case of trade unions regis- 
tered and doing business exclusively in Scotland or Ireland, to the 
assistant registrar for Scotland or Ireland respectively, and shall 
be registered by them : Provided that the rules of any trade union 
registered before the passing of this Act shall not be invalidated 
by the absence of a provision for dissolution. 

15. A trade union which fails to give any notice or send any 
document which is required by this Act to give or send, and every 
officer or other person bound by the rules thereof to give or send 
the same, or if there be no such officer, then every member ojf the 
committee of management of the union, unless proved to have been 
ignorant of, or to have attempted to prevent the omission to give 
or send the same, is liable to a penalty of not less than one pound 
and not more than five pounds, recoverable at the suit of the chief 
or any assistant registrar of Friendly Societies, or of any person 
aggrieved, and to an additional penalty of the like amount for each 
week during which the omission continues. 

16. So much of section twenty-three of the principal Act as de- 
fines the term trade union, except the proviso qualifying such 
definition, is hereby repealed, and in lieu thereof be it enacted as 
follows : 

The term " trade union '^ means any combination, whether tem- 
porary or permanent, for regulating the relations between worlanen 
and masters, or between workmen and workmen, or between mas- 
ters and masters, or for imposing restrictive conditions on the con- 
duct of any trade or business, whether such combination would or 
would not, if the principal Act had not been passed, have been 
deemed to have been an unlawful combination by reason of some 
one or more of its purposes being in restraint of trade. 



[6 EDW. VII.] Trade Disputes Act, 1906. 
Chaptek 47. 
An Act to provide for the regulation of Trades Unions and 
Trade Disputes. [21st December 1906.] 

Be it enacted by the King's most Excellent Majesty, by and 
with the advice and consent of the Lords Spiritual and Tem- 



.220 STATISTICS OF LABOK. [Pub. Doc. 

poralj and Commons, in this present Parliament assembled, and 
hj the authority of the same, as follows : — 

1. The following paragraph shall be added as a new para- 
graph after the first paragraph of section three of the Con- 
spiracy and Protection of Property Act, 1875 : ^ — 

" An act done in pursuance of an agreement or combination 
by two or more persons shall, if done in contemplation or fur- 
therance of a trade dispute, not be actionable unless the act, if 
done without any such agreement or combination, would be 
actionable.'' 

2. (1) It shall be lawful for one or more persons, acting 
on their own behalf or on behalf of a trade imion or of an indi- 
vidual employer or firm in contemplation or furtherance of a 
trade dispute, to attend at or near a house or place where a 
person resides or works or carries on business or happens to be, 
if th*ey so attend merely for the purpose of peacefully obtaining 
or communicating information, or of peacefully persuading any 
person to work or abstain from working. 

(2) Section seven of the Conspiracy and Protection of Prop- 
erty Act, 18Y5, is hereby repealed from ^' attending at or near " 
to the end of the section.^ 

3. An act done by a person in contemplation or furtherance 
of a trade dispute shall not be actionable on the ground only 
that it induces some other person to break a contract of employ- 
ment or that it is an interference with the trade, business, or 
employment of some other person, or with the right of some 
other person to dispose of his capital or his labor as he wills. 

4. (1) An action against a trade union, whether of work- 
men or masters, or against any members or officials thereof on 
behalf of themselves and all other members of the trade union 
in respect of any tortious act alleged to have been committed 



^ The paragraph referred to reads as follows: 

"3. An agreement or combination by two or more persons to do or procure to 
be done any act in contemplation or furtherance of a trade dispute between em- 
ployers and workmen shall not be indictable as a conspiracy if such act committed 
by one person would not be punishable as a crime." 

'^ The paragraph repealed reads as follows : 

"Attending at or near the house or place where a person resides, or works, or 
carries on business, or happens to be, or the approach to such house or place, in 
order merely to obtain or communicate information, shall not be deemed a watch- 
ing or besetting within the meaning of this section." 



No. 15.] LEGAL STATUS OF TRADE UNIONS. 221 

by or on behalf of tbe trade union, shall not be entertained by 
any court. 

(2) Nothing in this section shall affect the liability of the 
trustees of a trade. union to be sued in the events provided for 
by the Trades Union Act, 1871, section nine, except in respect 
of any tortious act committed by or on behalf of the union in 
contemplation or in furtherance of a trade dispute. 

5. (1) This Act may be cited as the Trade Disputes Act, 
1906, and the Trade Union Acts, 1871 and 1876, and this Act 
may be cited together as the Trade Union Acts, 1871 to 1906. 

(2) In this Act the expression ^' trade union" has the same 
meaning as in the Trade Union Acts, 1871 and 1876, and shall 
include any combination as therein defined, notwithstanding 
that such combination may be the branch of a trade union. 

(3) In this Act and in the Conspiracy and Protection of 
Property Act, 1875, the expression " trade dispute " means any 
dispute between employers and w^orkmen, or between ^vorkmen 
and workmen, which is connected with the employment or non- 
employment or the terms of the employment, or with the condi- 
tions of labor, of any person, and the expression " workmen " 
means all persons employed in trade or industry, whether or 
not in the employment of the employer with whom a trade dis- 
pute arises ; and, in section three of the last-mentioned Act, the 
words, '' between employers and workmen '' shall be repealed. 



222 STATISTICS OF LABOE. [Pub. Doc. 

ly. 

THE BKITISH WOKKMEl^'S COMPENSATION^ ACTS. 

Introductory. 
The theory of Workmen's Compensation Acts, such as have 
been passed in 21 foreign countries, notably Great Britain, Ger- 
m^any, Austria, Belgium, British Columbia, Cape Colony, Den- 
mark, Finland, France, Greece, Italy, Luxemburg, ^N^etherlands, 
INTew Zealand, ISTorway, Queensland, Russia, South Australia, 
Spain, Sweden, and West Australia, was well and succinctly 
stated in the report of the Committee on Belations Between 
Employer and Employee, which was submitted to the Massa- 
chusetts Legislature in 1904 as the result of an inquiry author- 
ized by the preceding Legislature. This Committee, which was 
composed of Carroll D. Wright, Chairman, and Messrs. Henry 
Sterling, Royal Robbins, William E". Osgood, and Davis R. 
Dewey, said: 

The object underlying all such acts, whether in Great Britain or in 
other countries, is to remove in a measure, and so far as safety will 
warrant, the economic insecurity of employees, on the theory that, 
where a man receives injury while in the course of his employment, 
society should recoup him in some measure without resorting to charity; 
that a man working in any dangerous occupation, or in any occupation, 
as to that matter, is really doing a service to the public; he is enabling 
the public to prosper through industrial conditions, and therefore the 
public owes him something should he meet with disaster; that capital 
recoups itself for losses by charging off a certain percentage every 
year for deterioration of plant; that the workingman has no means 
of charguig off his deterioration of muscle and skill through the acci- 
dents incident to production, and that he ought, in all justice, to have 
such deterioration compensated in some reasonable way by society itself ; 
that, as the deterioration of plant is paid for by being added to the 
cost of production, the deterioration of the man should also be added 
to the cost of production. The theory is, also, — and this has determined 
the acts of foreign countries in this respect, — that society ultimately 
pays all such costs through consumption. 

Prior to 1880 there had been numerous attempts to secure 
legislation by Parliament to abrogate entirely the doctrine of 
common employment and the defence of assumed risk, but in 



No. 15.] WORICMEN'S COMPENSATION ACTS. 223 

that year a measure was introduced by the Gladstone govern- 
ment, which was finally enacted into law, being known as the 
Employers' Liability Act of 1880. The prime reason for this 
legislation was said to be that '^ the common law had ended in 
giving the workman no compensation at all unless he could 
trace the accident to personal negligence on the part of his 
employer." 

The bill, as passed, was limited in its operation to seven 
years, but the time was subsequently extended periodically until 
the j)assage of the Workmen's Compensation Act of 1897. By 
the provisions of the Act of 1880 the doctrine of common em- 
ployment remained in force with respect to accidents from other 
causes than those mentioned in the first section of the law. 
These five causes of injury to a workman concerning which the 
doctrine of common employment was no longer to apply were 
as follows : — 

(1) Defective ways, works, machinery, and plant (if due to the 
neghgence of the employer or of the person to whom has been dele- 
gated his duty thereabout). 

(2) Negligence of a superintendent (if superintendence was his prin- 
cipal duty and he was not ordinarily engaged in manual labor). 

(3) Negligence of persons to whom the employer had delegated his 
power of giving orders. 

(4) Acts or omissions m obedience to rules or by-laws or in obedience 
to instructions of persons authorized by employers to give them. 

(5) In the case of raihvay companies, the negligent management of 
trains, points, and signals. 

The employers sought to escape responsibility from compli 
ance with what was doubtless intended as the spirit of the law 
by making special contracts with their men by which they were 
freed from the liability imposed by the act, and the courts 
decided that such contracts were not contrary to public policy. 
In 1881, therefore, a bill was introduced in Parliament to 
prevent an employer from making such contracts, but the meas- 
ure failed as did similar bills in 1882 and 1883 and again in 
1886, in which year a special committee was appointed to 
inquire into the operation of the Act of 1880. 

The contracting-out schemes proved to be many and varied, 
sometimes operating quite advantageously for the workmen 



224 STATISTICS OF LABOR. [Pub. Doc. 

themselves, so that a progressive legislative agreement upon an 
equitable arrangement for all parties was slow. In 1893, the 
Home Secretary, Mr. Asquith, the Liberals being in power, 
introduced a bill to amend the existing law by providing for the 
repeal of the Act of 1880, for the complete abolition of the 
doctrine of common employment and limit of damages recover- 
able, and for the absolute prohibition of contracting out. This 
measure, while not taking away the defense of contributory 
negligence and acquiescence, left the servant in the same posi- 
tion as a stranger. But the bill finally failed. In 1897 
another attempt was made to deal with the subject by the 
government, which stated the situation thus: 

The present law is notoriously inadequate; it fails to compensate 
for accidents if caused by fellow-servants, if contributed to by the 
injured, and if resulting from the risks of occupation; it causes costly 
litigation, 35 per cent of the amount recovered being legal expense; it 
leaves the employer ignorant of what his liability is. 

The bill was vigorously attacked as revolutionary and social- 
istic, and was defended by Mr. Chamberlain on the ground that 
it dealt, not with absolute rights, but with questions of humanity 
and expediency. It finally became a law, being limited in its 
application to employment in the railway service, in factories, 
mines, quarries, or engineering works, and in the construction 
or razing of buildings exceeding 30 feet in height. In 1900 
the scope of the Act of 1897 was extended so as to include agri- 
cultural occupations. 

In N'ovember, 1903, a committee was appointed by the home 
secretary to inquire and report to the home ofiice — 

(1) What amendments in the law relating to compensation for in- 
juries to workmen are necessary or desirable, and 

(2) To what classes of employments not now included in the Work- 
men's Compensation Acts those acts can properly be extended with or 
without modification. 

This committee consisted of the following gentlemen: Sir 
Kenelm Digby, K. C. B. (chairman) ; Sir Benjamin Browne, 
D. C. L., Memb. Inst. C. E. ; His Honor Judge Lumley Smith, 
K. C; Capt. A. J. G. Chalmers, of the Board of Trade; Mr. 



No. 15.] WOEKMEN'S COMPENSATION ACTS. 225 

George N. Barnes, secretary of the Amalgamated Society of 
Engineers ; and Mr. Robert Reid Bannatyne, of the home office 
(secretary). 

The committee obtained a large amount of evidence from 
employers and workmen in numerous industries, from employers, 
associations and trade unions, from insurance companies and 
other sources. Much information was also furnished it by the 
Labour Department of the Board of Trade and other govern- 
ment departments, by factory and mine inspectors and by the 
judiciary. An exhaustive report was made in August, 1904, 
which was accepted as a basis for future legislation. Following 
is a summary of the committee's findings, taken from a historical 
discussion of the Compensation Acts by Launcelot Packer, 
B. L., published by the United States Bureau, of Labor in its 
Bulletin (No. 70) for May, 1907: 

As regards workmen, the committee found that the acts had conferred 
substantial benefits on those included in them; that prior to them 
practically the whole burden of industrial accident had fallen on the 
workmen, and it was right and necessary that some systematic provision 
for rehef by law should be provided; that the act gave substantial 
relief, not complete indemnity, and there was little complaint from 
workmen of the limitation to one-half wages and other maximum limits 
in them. 

Personal inquiry by the author concerning the practical workings of 
the act made during 1906 of Government officials, of employers, and of 
representatives of labor disclosed a unanimity of opinion that the 
principle of the act was sound, the extent to which it should be carried 
being the only question. The act was said to have proved a great 
boon to the workmen covered by it, labor strongly advocating its ex- 
tension, while employers generally accepted it. In the building trades 
the secretary of one of the conciliation boards of a large master builders' 
association said that the principle was accepted by employers; that the 
burden was transferred to the building owner and not to wages, which 
had risen; that the act had tended to prevention of accident, as it had 
stimulated employers to have better plants; that it had reduced litiga- 
tion, which was largely confined to non-union workmen. In the cotton 
trade a gentleman who was thoroughly informed as to its effects on 
that trade said that there had been no risk of injury to the trade 
through the burden of the act; that it had not, however, fallen on 
wages, which had increased 10 per cent; that the act had operated 
strongly as a prevention of accident, the monetary liabiHty for every 
accident, as well as the trade mutual insurance inspection, conducing 



226 STATISTICS OF LABOR. [Pub. Doc 

thereto; that it had caused a large reduction in negligence claims; and 
that litigation on test cases under the act had practically disappeared, 
so that friction was reduced to a minimum, while the administration cost 
nothing, as no lawyers were necessary. 'As regards railways, an in- 
fluential employee's organization said that the principle was regarded 
as absolutely just and valuable to the recipients of the benefits and 
had kept many from the poorhouse; that the burden was generally 
conceded to have been transferred to the public; that it did not come^ 
out of wages, which had increased (only reaching them to the extent 
of 25 per cent of the compensation paid in unorganized trades) ; that 
litigation on questions of law had now practically disappeared, most 
cases being settled without even arbitration, and that arbitration cost 
little, generally under £5 ($24.33) a case; that the act had tended 
to prevent accidents, owing to expense now arising for every accident ;. 
moreover, that there had been no case of deliberate self -injury on rail- 
roads. A representative of the coal miners corroborated the fact that 
all labor was in favor of the act and illustrated the almost automatic- 
working of it in the case of the Durham miners. . . . Considering 
the overwhelming extent to which the energies of this country are- 
directed into mechanical industry and the high ratio of accident to 
population therefrom, entailing such widespread hardship through. 
the haphazard treatment of each accident on the negligence basis,. 
with its result of serious injustice in so many cases to employer and 
workmen alike, as well as the enormous waste of energy and money 
in the ever-increasing volume of personal-injury litigation, which clogs- 
cur courts, it is manifest that the subject requires the earnest and care- 
ful consideration of serious people. Nor is it unlikely that the prin- 
ciple of a wise and practical step toward the solution of this difficult,. 
but most important, subject may be found in the British workmen's- 
compensation acts. 

The Act of 1897 has now been still further amended by an 
enactment of law which bears date of December 21, 1906, en- 
titled " An Act to consolidate and amend the law with respect to- 
compensation to workmen for injuries suffered in the course of 
their employment." The new law extends the principles of the 
former enactments to practically every public relationship of 
master and servant, and further provides for compensation for 
certain specified trade diseases. The Board of Trade Labour 
Gazette for January, 1907, in its review of legislation in 1906 
affecting labor summarizes the act as follows : — 

Several new laws of the greatest importance to labour were passed in 
the year 1906. Of these the Act which affects the greatest number of 



No. 15.] WORKMEN'S COMPENSATION ACTS. 227 

persons is undoubtedly the Workmen's Compensation Act, 1906, which 
is said to bring 6,000,000 additional persons within the scope of the 
law giving compensation for injury by accident. It repeals the existing 
Acts and consolidates and amends the laws. The first great point to 
notice is that the Act applies practically to all workpeople, including 
seamen, as well as clerks, shopmen, and domestic serv^ants. Those 
excluded are : — All persons who are employed otherwise than by way 
of manual labour whose remuneration exceeds £250 a year, outworkers, 
members of a police force, members of the employer's family who live 
in the employer's house, and persons casually employed for some pur- 
pose not connected with the employer's trade or business. The amount 
payable in case of death or injury is generally the same as fixed by the 
Act of 1897 ; but the minimum period of incapacity entitling to a weekly 
payment is reduced from a fortnight to one week, and where the in- 
capacity lasts two weeks or more, the weekly payments are to commence 
from the date of the injury instead of, as heretofore, from a fortnight 
after that date. Where an injured workman is under 21 years of age, 
and his earnings are less than 20s. a week, compensation may be 
awarded to him to a rate of 100 per cent instead of 50 per cent of his 
weekly earnings, provided that the weekly payment is not to exceed 10s. 
Another very important feature of the new Act is its extension so 
as to include the contracting of certain diseases due to the nature of an 
employment amongst personal injuries by accident arising out of the 
employment. The diseases referred to are anthrax, poisoning by lead, 
mercury, phosphorus or arsenic, and ankylostomiasis. The Home Sec- 
retary is, however, given power to extend the provisions of the Act, 
by order, to other diseases. To the list of " dependants " entitled to 
compensation in case of the death of a workman are added an illegit- 
imate child or grandchild of the deceased, where such child was de- 
pendent on his earnings, and the parent or grandparent of the workman 
where the workman was illegitimate and the parent or grandparent was 
so dependent. The Act comes into operation on July 1st, 1907, and 
only applies to accidents happening on or after that day, with the 
exception of certain provisions as to medical referees. The Acts of 
1897 and 1900 continue to apply to all cases where the accident hap- 
pened before July 1st, 1907. 

Below is given the full text of the act which took effect July 
1, 1907:' — 



1 The texts of the Acts of 1897 and 1900 are printed in the U. S. Bureau of Labor 
Bulletin, No. 70, pp. 631-638. 



228 



STATISTICS OF LABOR. [Pub. Doc. 



British Workmen's Compensation Act of 1906. 

An Act to consolidate and amend the law with respect to compensation 

to workmen for injuries suffered in the course of their employment 

[21st December, 1906]. 

Be it enacted by . . . Parliament assembled^ and by the authority of 
the same, as follows: 

1- — (1) If in any employment personal injury by accident arising 
out of and in the course of the employment is caused to a workman, 
his employer shall, subject as hereinafter mentioned, be liable to pay 
compensation in accordance with the first schedule to this act. 

(2) Provided that — 

{a) The employer shall not be liable under this act in respect of any 
injury which does not disable the workman for a period of at least one 
week from earning full wages at the work at which he was employed : 

(&) When the injury was caused by the personal negligence or willful 
act of the employer or of some person for whose act or default the 
employer is responsible, nothing in this act shall affect any civil liability 
of the employer, but in that case the workman may, at his option, 
either claim compensation under this act or take proceedings inde- 
pendently of this act; but the employer shall not be liable to pay 
compensation for injury to a workman by accident arising out of and 
in the course of the employment both independently of and also under 
this act, and shall not be liable to any proceedings independently of 
this act, except in case of such personal negligence or willful act as 
aforesaid : 

(c) If it is proved that the injury to a workman is attributable to the 
serious and willful misconduct of that workman, any compensation 
claimed in respect of that injury shall, unless the injury results in 
death or serious and permanent disablement, be disallowed. 

(3) If any question arises in any proceedings under this act as to the 
liability to pay compensation under this act (including any question as 
to whether the person injured is a workman to whom this act applies), 
or as to the amount or duration of compensation under this act, the 
question, if not settled by agreement, shall, subject to the provisions 
of the first schedule to this act, be settled by arbitration, in accordance 
with the second schedule to this act. 

(4) If, within the time hereinafter in this act limited for taking 
proceedings, an action is brought to recover damages independently of 
this act for injury caused by any accident, and it is determined in such 
action that the injtiry is one for which the employer is not liable in 
such action, but that he would have been liable to pay compensation 
under the provisions of this act, the action shall be dismissed; but the 
court in which the action is tried shall, if the plaintiff so choose, proceed 
to assess such compensation, but may deduct from such compensation 
all or part of the costs which, in its judgment, have been caused by the 



No. 15.] WORKMEN'S CO^IPENSATION ACTS. 229 

plaintiff bringing the action instead of proceeding under this act. In 
any proceeding under this subsection, when the court assesses the com- 
pensation it shall give a certificate of the compensation it has awarded 
and the directions it has given as to the deduction for costs, and such 
certificate shall have the force and effect of an award under this act. 

(5) Nothing in this act shall affect any proceeding for a fine under 
the enactments relating to mines, factories, or workshops, or the appli- 
cation of any such fine. 

2. — (1) Proceedings for the recovery under this act of compensation 
for an injury shall not be maintainable unless notice of the accident 
has been given as soon as practicable after the happening thereof and 
before the workman has voluntarily left the employment in which he 
was injured, and unless the claim for compensation with respect to such 
accident has been made within six months from the occurrence of the 
accident causing the injury, or, in case of death, within six months 
from the time of death : 

Provided always that — 

(a) the want of or any defect or inaccuracy in such notice shall not 
be a bar to the maintenance of such proceedings if it is found in the 
proceedings for settling the claim that the employer is not, or would 
not, if a notice or an amended notice were then given and the hearing 
postponed, be prejudiced in his defense by the want, defect, or in- 
accuracy, or that such want, defect, or inaccuracy was occasioned by 
mistake, absence from the United Kingdom, or other reasonable cause; 
and 

(h) the failure to make a claim within the period above specified 
shall not be a bar to the maintenance of such proceedings if it is found 
that the failure was occasioned by mistake, absence from the United 
Kingdom, or other reasonable cause. 

(2) Notice in respect of an injury under this act shall give the name 
and address of the person injured, and shall state in ordinary language 
the cause of the injury and the date at which the accident happened, 
and shall be served on the employer, or, if there is more than one em- 
ployer, upon one of such employers. 

(3) The notice may be served by delivering the same at, or sending 
it by post in a registered letter addressed to, the residence or place of 
business of the person on whom it is to be serv^ed. 

(4) Where the employer is a body of persons, corporate or unin- 
corporate, the notice may also be served by delivering the same at, or 
by sending it by post in a registered letter addressed to, the employer 
at the office, or, if there be more than one office, any one of the offices 
of such body. 

3. — (1) If the registrar of friendly societies, after taking steps to 
ascertain the views of the employer and workmen, certifies that any 
scheme of compensation, benefit, or insurance for the workmen of an 
employer in any employment, whether or not such scheme includes other 



230 STATISTICS OF LABOR. [Pub. Doc. 

employers and their workmen, provides scales of compensation not less 
favorable to the workmen and their dependents than the corresponding 
scales contained in this act, and that, where the scheme provides for 
contributions by the workmen, the scheme confers benefits at least equiv- 
alent to those contributions, in addition to the benefits to which the 
workmen would have been entitled under this act, and that a majority 
(to be ascertained by ballot) of the workmen to whom the scheme 
is applicable are in favor of such scheme, the employer may, whilst 
the certificate is in force, contract with any of his workmen that the 
provisions of the scheme shall be substituted for the provisions of this 
act, and thereupon the employer shall be liable only in accordance with 
the scheme, but, save as aforesaid, this act shall apply notwithstanding 
any contract to the contrary made after the commencement of this act. 

(2) The registrar may give a certificate to expire at the end of a 
limited period of not less than five years, and may from time to time 
renew with or without modifications such a certificate to expire at the 
end of the period for which it is renewed. 

{3) No scheme shall be so certified which contains an obligation upon 
the workmen to join the scheme as a condition of their hiring, or which 
does not contain provisions enabling a workman to withdraw from the 
scheme. 

(4) If complaint is made to the registrar of friendly societies by or 
on behalf of the workmen of any employer that the benefits conferred 
by any scheme no longer conform to the conditions stated in subsection 
(1) of this section, or that the provisions of such scheme are being 
violated, or that the scheme is not being fairly administered, or that 
satisfactory reasons exist for revoking the certificate, the registrar shall 
examine into the complaint, and, if satisfied that good cause exists for 
such complaint, shall, unless the cause of complaint is removed, revoke 
the certificate. 

(5) When a certificate is revoked or expires, any moneys or securities 
held for the purpose of the scheme shall, after due provision has been 
made to discharge the liabilities already accrued, be distributed as may 
be arranged between the employer and workmen, or as may be de- 
termined by the registrar of friendly societies in the event of a dif- 
ference of opinion. 

(6) Whenever a scheme has been certified as aforesaid, it shall be 
the duty of the employer to answer all such inquiries and to furnish 
all such accounts in regard to the scheme as may be made or required 
by the registrar of friendly societies. 

(7) The chief registrar of friendly societies shall include in his 
annual report the particulars of the proceedings of the registrar under 
this act. 

(8) The chief registrar of friendly societies may make regulations 
for the purpose of carrying this section into effect. 

4. — (1) Where any person (in this section referred to as the prin- 
cipal,) in the course of or for the purposes of his trade or business, 



No. 15.] WORKMEN'S COMPENSATION ACTS. 231 

contracts with any other person (in this section referred to as the con- 
tractor) for the execution by or under the contractor of the whole or 
any part of any work undertaken by the principal, the principal shall 
be liable to pay to any workman employed in the execution of the work 
any compensation under this act which he would have been liable to 
pay if that workman had been immediately employed by him; and 
where compensation is claimed from or proceedings are taken against 
the principal, then, in the application of this act, references to the 
principal shall be substituted for references to the employer, except 
that the amount of compensation shall be calculated with reference to 
the earnings of the workman under the employer by whom he is imme- 
diately employed: 

Provided that, where the contract relates to threshing, plowing, or 
other agricultural work, and the contractor provides and uses machinery 
driven by mechanical power for the purpose of such work, he and he 
alone shall be liable under this act to pay compensation to any work- 
man employed by him on such work. 

(2) Where the principal is liable to pay compensation under this 
section, he shall be entitled to be indemnified by any person who would 
have been liable to pay compensation to the workman independently of 
this section, and all questions as to the right to and amount of any such 
indemnity shall in default of agreement be settled by arbitration under 
this act. 

(3) Nothing in this section shall be construed as preventing a work- 
man recovering compensation under this act from the contractor instead 
of the principal. 

(4) This section shall not apply in any ease where the accident 
occurred elsewhere than on, or in, or about premises on which the 
principal has undertaken to execute the work or which are otherwise 
under his control or management, 

5. — (1) Where any employer has entered into a contract with any 
insurers in respect of any liability under this act to any workman, then, 
in the event of the employer becoming bankrupt, or making a composi- 
tion or arrangement with his creditors, or if the employer is a company 
in the event of the company having commenced to be wound up, the 
rights of the employer against the insurers as respects that liability 
shall, notwithstanding anything in the enactments relating to bank- 
ruptcy and the winding up of companies, be transferred to and vest in 
the workman, and upon any such transfer the insurers shall have the 
same rights and remedies and be subject to the same liabilities as if they 
were the employer, so however that the insurers shall not be under 
any greater liability to the workman than they would have been under 
to the employer. 

(2) If the liability of the insurers to the workman is less than the 
liability of the employer to the workman, the workman may prove for 
the balance in the bankruptcy or liquidation. 

(3) There shall be included among the debts which under section 



232 STATISTICS OF LABOR. [Pub. Doc. 

one of the Preferential Payments in Bankruptcy Act, 1888, and section 
four of the Preferential Payments in Bankruptcy (Ireland) Act, 1889, 
are in the distribution of the property of a bankrupt and in the dis- 
tribution of the assets of a company being wound up to be paid in 
priority to all other debts, the amount, not exceeding in any individual 
case one hundred pounds, due in respect of any compensation the 
liability wherefor accrued before the date of the receiving order or 
the date of the commencement of the winding up, and those acts and the 
Preferential Payments in Bankruptcy Amendment Act, 1897, shall have 
effect accordingly. Where the compensation is a weekly payment, the 
amount due in respect thereof shall, for the purposes of this provision, 
be taken to be the amount of the lump sum for which the weekly 
payment could, if redeemable, be redeemed if the employer made an 
application for that purpose under the first schedule to this act. 

(4) In the case of the winding up of a company within the meaning 
of the Stannaries Act, 1887, such an amount as aforesaid, if the com- 
pensation is payable to a miner or the dependents of a miner, shall 
have the like priority as is conferred on wages of miners by section 
nine of that act, and that section shall have effect accordingly. 

(5) The provisions of this section with respect to preferences and 
priorities shall not apply where the bankrupt or the company being 
wound up has entered into such a contract with insurers as aforesaid. 

(6) This section shall not apply where a company is wound up 
voluntarily merely for the purposes of reconstruction or of amalgama- 
tion with another company. 

6. Where the injury for which compensation is payable under this 
act was caused under circumstances creating a legal liability in some 
person other than the employer to pay damages in respect thereof — 

(1) The workman may take proceedings both against that person to 
recover damages and against any person liable to pay compensation 
under this act for such compensation, but shall not be entitled to recover 
both damages and compensation; and 

(2) If the workman has recovered compensation under this act, the 
person by whom the compensation was paid, and any person who has 
been called on to pay an indemnity under the section of this act 
relating to subcontracting, shall be entitled to be indemnified by the 
person so liable to pay damages as aforesaid, and all questions as to 
the right to and amount of any such indemnity shall, in default of 
agreement, be settled by action, or, by consent of the parties, by arbitra- 
tion under this act. 

7. — (1) This act shall apply to masters, seamen, and apprentices to 
the sea service and apprentices in the sea-fishing service, provided that 
such persons are workmen within the meaning of this act, and are 
members of the crew of any ship registered in the United Kingdom, 
or of any other British ship or vessel of which the owner, or (if there 



No. 15.] WORKMEN'S COMPENSATION ACTS. 233 

is more than one owner) the managing owner, or manager resides or 
has his principal place of business in the United Kingdom, subject to 
the following modifications: 

(a) The notice of accident and the claim for compensation may, ex- 
cept where the person injured is the master, be served on the master of 
the ship as if he were the employer, but where the accident happened 
and the incapacity commenced on board the ship it shall not be neces- 
sary to give any notice of the accident : 

(b) In the case of the death of the master, seaman, or apprentice, 
the claim for compensation shall be made within six months after news 
of the death has been received by the claimant : 

(c) Where an injured master, seaman, or apprentice is discharged 
or left behind in a British possession or in a foreign country, deposi- 
tions respecting the circumstances and nature of the injury may be 
taken by any judge or magistrate in the British possession, and by any 
British consular officer in the foreign country, and if so taken shall 
be transmitted by the person by whom they are taken to the Board of 
Trade, and such deposition or certified copies thereof shall in any 
proceedings for enforcing the claim be admissible in evidence as pro- 
vided by sections six hundred and ninety-one and six hundred and 
ninety-five of the Merchant Shipping Act, 1894, and those sections 
shall apply accordingly: 

(d) In the case of the death of a master, seaman, or apprentice, 
leaving no dependents, no compensation shall be payable, if the owner 
of the ship is under the Merchant Shipping Act, 1894, liable to pay 
the expenses of burial : 

(e) The weekly payment shall not be payable in respect of the period 
during which the owner of the ship is, under the Merchant Shipping 
Act, 1894, as amended by any subsequent enactment, or otherwise, 
liable to defray the expenses of maintenance of the injured master, 
seaman, or apprentice: 

(/") Any sum payable by way of compensation by the owner of a 
ship under this act shall be paid in full notwithstanding anything in 
section five hundred and three of the Merchant Shipping Act, 1894 
(which relates to the limitation of a shipowner's liability in certain 
cases of loss of life, injury, or damage), but the limitation on the 
owner's liability imposed by that section shall apply to the amount 
recoverable by way of indemnity under the section of this act relating 
to remedies both against employer and stranger as if the indemnity 
were damages for loss of life or personal injury : 

(g) Subsections (2) and (3) of section one hundred and seventy- 
four of the Merchant Shipping Act, 1894 (which relates to the re- 
covery of wages of seamen lost with their ship), shall apply as respects 
proceedings for the recovery of compensation by dependents of masters. 



234 STATISTICS OF LABOR. [Pub. Doc. 

seamen, and apprentices lost with their ship as they apply with respect 
to proceedings for the recovery of wages due to seamen and apprentices ; 
and proceedings for the recovery of compensation shall in such a case 
be maintainable if the claim is made within eighteen months of the date 
at which the ship is deemed to have been lost with all hands: 

(2) This act shall not apply to such members of the crew of a fishing 
vessel as are remunerated by shares in the profits or the gross earnings 
of the working of such vessel. 

(3) This section shall extend to pilots to whom Part X. of the 
Merchant Shipping Act, 1894, applies, as if a pilot when employed 
on any such ship as aforesaid were a seaman and a member of the 
crew. 

8.— (1) Where — 

(i) the certifying surgeon appointed under the Factory and Work- 
shop Act, 1901, for the district in which a workman is employed certifies 
that the workman is suffering from a disease mentioned in the third 
schedule to this act and is thereby disabled from earning full wages at 
the work at which he was employed; or 

(n) a workman is, in pursuance of any special rules or regulations 
made under the Factory and Workshop Act, 1901, suspended from his 
usual employment on account of having contracted any such disease; or 

(Hi) the death of a workman is caused by any such disease; 
• and the disease is due to the nature of any employment in which the 
workman was employed at any time within the twelve months previous 
to the date of the disablement or suspension, whether under one or more 
employers, he or his dependents shall be entitled to compensation under 
this act as if the disease or such suspension as aforesaid were a per- 
sonal injury by accident arising out of and in the course of that em- 
ployment, subject to the following modifications : — 

(a) The disablement or suspension shall be treated as the happening 
of the accident; 

(h) If it is proved that the workman has at the time of entering the 
employment willfully and falsely represented himself in writing as not 
having previously suffered from the disease, compensation shall not be 
payable ; 

(c) The compensation shall be recoverable from the employer who 
last employed the workman during the said twelve months in the em- 
ployment to the nature of which the disease was due : 

Provided that — 

{i) the workman or his dependents if so required shall furnish that 
employer with such information as to the names and addresses of all 
other employers who employed him in the employment during the said 
twelve months as he or they may possess, and, if such information is 
not furnished, or is not sufficient to enable that employer to take pro- 
ceedings under the next following proviso, that employer upon proving 



No. 15.] WORKMEN'S COMPENSATION ACTS. 235 

that the disease was not contracted whilst the workman was in his 
employment shall not be liable to pay compensation; and 

(m) if that employer alleges that the disease was in fact contracted 
whilst the workman was in the employment of some other employer, 
and not whilst in his employment, he may join such other employer as 
a party to the arbitration, and if the allegation is proved that other 
employer shall be the employer from whom the compensation is to be 
recoverable; and 

(m) if the disease is of such a nature as .to be contracted by a 
gradual process, any other employers who during the said twelve months 
employed the workman in the employment to the nature of which the 
disease was due shall be liable to make to the employer from whom 
compensation is recoverable such contributions as, in default of agree- 
ment, may be determined in the arbitration under this act for settling 
the amount of the compensation; 

(d) The amount of the compensation shall be calculated with ref- 
erence to the earnings of the workman under the employer from whom 
the compensation is recoverable; 

(e) The employer to whom notice of the death, disablement, or sus- 
pension is to be given shall be the employer who last employed the 
workman during the said twelve months in the employment to the 
nature of which the disease was due, and the notice may be given not- 
withstanding that the -workman has voluntarily left his employment. 

(/■) If an employer or a workman is aggrieved by the action of a 
certifying or other surgeon in giving or refusing to give a certificate 
of disablement or in suspending or refusing to suspend a workman for 
the purposes of this section, the matter shall in accordance with reg- 
ulations made by the secretary of state be referred to a medical 
referee, whose decision shall be final. 

(2) If the workman at or immediately before the date of the dis- 
ablement or suspension was employed in any process mentioned in the 
second column of the third schedule to this act, and the disease con- 
tracted is the disease in the first column of that schedule set opposite 
the description of the process, the disease, except where the certifying 
surgeon certifies that in his opinion the disease was not due to the 
nature of the employment, shall be deemed to have been due to the 
nature of that employment, unless the employer proves the contrary. 

(3) The secretary of state may make rules regulating the duties and 
fees of certifying and other surgeons (including dentists) under this 
section. 

(4) For the purposes of this section the date of disablement shall be 
such date as the certifying surgeon certifies as the date on which the 
disablement commenced, or, if he is unable to certify such a date, the 
date on which the certificate is given : 

Provided that — 



236 STATISTICS OF LABOR. [Pab. Doc. 

(a) Where tiie medical referee allows an appeal against a refusal 
by a certifying surgeon to give a certificate of disablement, the date of 
disablement shall be such date as the medical referee may determine : 

(b) Where a workman dies without having obtained a certificate of 
disablement, or is at the time of death not in receipt of a weekly pay- 
ment on account of disablement, it shall be the date of death. 

(5) In such cases, and subject to such conditions as the secretary of 
state may direct, a medical practitioner appointed by the secretary of 
state for the purpose shall have the powers and duties of a certifying 
surgeon under this section, and this section shall be construed accord- 
ingly. 

(6) The secretary of state may make orders for extending the provi- 
sions of this section to other diseases and other processes, and to in- 
juries due to the nature of any employment specified in the order not 
being injuries by accident, either without modification or subject to 
such modifications as may be contained in the order. 

(7) Where, after inquiry held on the application of any employers 
or workmen engaged in any industry to which this section applies, it 
appears that a mutual trade insurance company or society for insuring 
against risks under this section has been established for the industry, 
and that a majority of the employers engaged in that industry are 
insured against such risks in the company or society and that the 
company or society consents, the secretary of state may, by provisional 
order, require all employers in that industry to insure in the company 
or society upon such terms and under such conditions and subject to 
such exceptions as may be set forth in the order. Where such a com- 
pany or society has been established, but is confined to employers in 
any particular locality or of any particular class, the secretary of state 
may for the purposes of this provision treat the industry, as carried 
on by employers in that locality or of that class, as a separate industry. 

(8) A provisional order made under this section shall be of no force 
whatever unless and until it is confirmed by Parliament, and if, while 
the bill confirming any such order is pending in either House or 
Parliament, a petition is presented against the order, the bill may be 
referred to a select committee, and the petitioner shall be allowed to 
appear and oppose as in the case of private bills, and any act con- 
firming any provisional order under this section may be repealed, altered, 
or amended by a provisional order made and confirmed in like manner. 

(9) Any expenses incurred by the secretary of state in respect of 
any such order, provisional order, or confirming bill shall be defrayed 
out of moneys provided by Parliament. 

(10) Nothing in this section shall affect the rights of a workman to 
recover compensation in respect of a disease to which this section does 
not apply, if the disease is a personal injury by accident within the 
meaning of this act. 

9. — (1) This act shall not apply to persons in the naval or military 



No. 15.] WORKMEN'S COMPENSATION ACTS. 237 

service of the Crown, but otherwise shall apply to workmen employed 
by or under the Crown to whom this act would apply if the employer 
were a private person : 

Provided that in the case of a person employed in the private service 
of the Crown, the head of that department of the royal household 
in which he was employed at the time of the accident shall be deemed 
to be his employer. 

(2) The treasury may, by warrant laid before Parliament, modify 
for the purposes of this act their warrant made under section one of the 
Superannuation Act, 1887, and notwithstanding anything in that act, 
or any such warrant, may frame schemes with a view to their beiug 
certified by the registrar of friendly societies under this act. 

10. — (1) The secretary of state may appoint such legally qualified 
medical practitioners to be medical referees for the purposes of this act 
as he may, with the sanction of the treasury, determine, and the re- 
muneration of, and other expenses incurred by, medical referees under 
this act shall, subject to regulations made by the treasury, be paid out 
of moneys provided by Parliament. 

Where a medical referee has been employed as a medical practitioner 
in connection with any case by or on behalf of an employer or workman 
or by any insurers interested, he shall not act as medical referee in that 
case. 

(2) The remuneration of an arbitrator appointed by a judge of 
county courts under the second schedule to this act shall be paid out of 
moneys provided by Parliament in accordance with regulations made 
by the treasury. 

11. — (1) If it is alleged that the owners of any ship are liable as 
such owners to pay compensation under this act, and at any time that 
ship is found in any port or river of England or Ireland, or within 
three miles of the coast thereof, a judge of any court of record in 
England or Ireland may, upon its being shown to him by any person 
applying in accordance with the rules of the court that the owners are 
probably liable as such to pay such compensation, and that none of the 
owners reside iu the United Kiagdom, issue an order dii'ected to any 
officer of customs or other officer named by the judge requiring him 
to detain the ship until such time as the owners, agent, master, or 
consignee thereof have paid such compensation, or have given security, 
to be approved by the judge, to abide the event of any proceedings that 
may be instituted to recover such compensation and to pay such com- 
pensation and costs as may be awarded thereon; and any officer of 
customs or other officer to whom the order is directed shall detain the 
ship accordingly. 

(2) In any legal proceeding to recover such compensation, the person 
giving security shall be made defendant, and the production of the 
order of the judge, made in relation to the security, shall be conclusive 
evidence of the liability of the defendant to the proceeding. 



238 STATISTICS OF LABOR. [Pub. Doc. 

(3) Section six hundred and ninety-two of the Merchant Shipping 
Act, 1894, shall apply to the detention of a ship under this act as it 
applies to the detention of a ship under that act, and, if the owner of a 
ship is a corporation, it shall for the purposes of this section be deemed 
to reside in the United Kingdom if it has an office in the United King- 
dom at which service of writs can be effected. 

12. — (1) Every employer in any industry to which the secretary of 
state may direct that this section shall apply shall, on or before such 
day in every year as the secretary of state may direct, send to the 
secretary of state a correct return specifying the number of injuries 
in respect of which compensation has been paid by him under this act 
during the previous year, and the amount of such compensation, together 
with such other particulars as to the compensation as the secretary of 
state may direct, and in default of complying with this section shall be 
liable on conviction under the Summary Jurisdiction Acts to a fine not 
exceeding five pounds [$24.33]. 

(2) Any regulations made by the secretary of state containing such 
directions as aforesaid shall be laid before both Houses of Parliament 
as soon as may be after they are made. 

13. In this act, unless the context otherwise requires, — 

" Employer " includes any body of persons corporate or unincorpo- 
rate and the legal personal representative of a deceased employer, and, 
where the services of a workman are temporarily lent or let on hire 
to another person by the person with whom the workman has entered 
into a contract of service or apprenticeship, the latter shall, for the 
purposes of this act, be deemed to continue to be the employer of the 
workman whilst he is working for that other person ; 

" Workman " does not include any person employed otherwise than by 
way of manual labor whose remuneration exceeds two hundred and fifty 
pounds [$1,216.63] a year, or a person whose employment is of a 
casual nature and who is employed otherwise than for the purposes 
of the employer's trade or business, or a member of a police force, or 
an outworker, or a member of the employer's family dwelling in his 
house, but, save as aforesaid, means any person who has entered into 
or works under a contract of service or apprenticeship with an eija- 
ployer, whether by way of manual labor, clerical work, or otherwise, 
and whether the contract is expressed or implied, is oral or in writing; 

Any reference to a workman who has been injured shall, where the 
workman is dead, include a reference to his legal personal representative 
or to his dependents or other person to whom or for whose benefit 
compensation is payable ; 

" Dependents " means such of the members of the workman's family 
as were wholly or in part dependent upon the earnings of the workman 
at the time of his death, or would but for the incapacity due to the 
accident have been so dependent, and where the workman, being the 
parent or grandparent of an illegitimate child, leaves such a child so 



No. 15.] WOKKMEN'S COMPENSATION ACTS. 239 

dependent upon his earnings, or, being an illegitimate child, leaves a 
parent or grandparent so dependent upon his earnings, shall include 
such an illegitimate child and parent or grandparent respectively; 

" Member of a family " means wife or husband, father, mother, grand- 
father, grandmother, step-father, step-mother, son, daughter, grandson, 
granddaughter, stepson, step-daughter, brother, sister, half-brother, 
half-sister; 

" Ship," " vessel," " seaman," and " port " have the same meanings as 
in the Merchant Shipping Act, 1894; 

" Manager," in relation to a ship, means the ship's husband or other 
person to whom the management of the ship is entrusted by or on 
behalf of the owner; 

" Police force " means a police force to which the Police Act, 1890, 
or the Police (Scotland) Act, 1890, applies, the City of London Police 
Force, the Royal Irish Constabulary, and the Dublin Metropolitan 
Police Force ; 

" Outworker " means a person to whom articles or materials are given 
out to be made up, cleaned, washed, altered, ornamented, finished, or 
repaired, or adapted for sale, in his own home or on other premises 
not under the control or management of the person who gave out the 
materials or articles; 

The exercise and performance of the powers and duties of a local or 
other public authority shall, for the purposes of this act, be treated as 
the trade or business of the authority; 

" County court," " judge of the county court," " registrar of the 
county court," " plaintiff," and " n^les of court," as respects Scotland, 
mean respectively sheriff court, sheriff, sheriff clerk, pursuer, and act of 
sederunt. 

14. In Scotland, where a workman raises an action against his em- 
ployer independently of this act in respect of any injury caused by 
accident arising out of and in the course of the employment, the action, 
if raised in the sheriff court and concluding for damages under the 
Employers' Liability Act, 1880, or alternatively at common law or 
under the Employers' Liability Act, 1880, shall, notwithstanding any- 
thing contained in that act, not be removed under that act or otherwise 
to the court of session, nor shall it be appealed to that court otherwise 
than by appeal on a question of law; and for the purposes of such 
appeal the provisions of the second schedule to this act in regard to an 
appeal from the decision of the sheriff on any question of law de- 
termined by him as arbitrator under this act shall apply. 

15. — ■ (1) Any contract (other than a contract substituting the provi- 
sions of a scheme certified under the Workmen's Compensation Act, 
1897, for the provisions of that act) existing at the commencement of 
this act, whereby a workman relinquishes any right to compensation 
from the employer for personal injury arising out of and in the course 
of his employment, shall not, for the purposes of this act, be deemed 



240 STATISTICS OF LABOR. [Pub. Doc. 

to continue after the time at which the workman's contract of service 
would determine if notice of the determination thereof were given at 
the commencement of this act. 

(2) Every scheme under the Workmen's Compensation Act, 1897, in 
force at the commencement of this act shall, if recertified by the registrar 
of friendly societies, have effect as if it were a scheme under this act. 

(3) The registrar shall recertify any such scheme if it is proved to his 
satisfaction that the scheme conforms, or has been so modified as to 
conform, with the provisions of this act as to schemes. 

(4) If any such scheme has not been so recertified before the expira- 
tion of six months from the commencement of this act, the certificate 
thereof shall be revoked. 

16. — (1) This act shall come into operation on the first day of July, 
nineteen hundred and seven, but, except so far as it relates to references 
to medical referees, and proceedings consequential thereon, shall not 
apply in any case where the accident happened before the commence- 
ment of this act. 

(2) The Workmen's Compensation Acts, 1897 and 1900, are hereby 
repealed, but shall continue to apply to cases where the accident hap- 
pened before the commencement of this act, except to the extent to 
which this act applies to those cases. 

17. This act may be cited as the Workmen's Compensation Act, 1906. 

FIRST SCHEDULE. 

Scale and Conditions of Compensation. 

(1) The amount of compensation under this act shall be — 

(a) where death results from the injury — 

(^) if the workman leaves any dependents wholly dependent upon his 
earnings, a sum equal to his earnings in the employment of the same 
employer during the three years next preceding the injury, or the sum 
of one hundred and fifty pounds [$729.98], whichever of those sums 
is the larger, but not exceeding in atiy case three hundred pounds 
[$1,459.95], provided that the amount of any weekly payments made 
under this act, and any lump sum paid in redemption thereof, shall be 
deducted from such sum, and, if the period of the workman's employ- 
ment by the said employer has been less than the said three years, then 
the amount of his earnings during the said three years shall be deemed 
to be one hundred and fifty-six times his average weekly earnings during 
the period of his actual employment under the said employer; 

(m) if the workman does not leave any such dependents, but leaves 
any dependents in part dependent upon his earnings, such sum, not 
exceeding in any case the amount payable under the foregoing provi- 
sions, as may be agreed upon, or, in default of agreement, may be 
determined, on arbitration under this act, to be reasonable and pro- 
portionate to the injury to the said dependents; and 



No. 15.] WORKMEN'S CO^iPENSATION ACTS. 241 

(in) if he leaves no dependents, the reasonable expenses of his med- 
ical attendance and burial, not exceeding ten pounds [$48.67] ; 

(b) where total or partial incapacity for work results from the in- 
jury, a weekly payment during the incapacity not exceeding fifty per 
cent of his average weekly earnings during the previous twelve months, 
if he has been so long employed, but if not then for any less period 
during which he has been in the employment of the same employer, 
such weekly payment not to exceed one pound [$4.87] ; 

Provided that — 

(a) if the incapacity lasts less than two weeks no compensation shall 
be payable in respect of the first week; and 

(b) as respects the weekly payments during total incapacity of a 
workman who is under twenty-one years of age at the date of the 
injury, and whose average weekly earnings are less than twenty shillings 
[$4.87], one hundred per cent shall be substituted for fifty per cent 
of his average weekly earnings, but the weekly payment shall in no 
case exceed ten shillings [$2.43]. 

(2) For the purposes of the provisions of this schedule relating to 
" earnings " and " average weekly earnings " of a workman, the follow- 
ing rules shall be observed : — 

(a) average weekly earnings shall be computed in such manner as is 
best calculated to give the rate per week at which the workman was 
being remunerated. Provided that where by reason of the shortness 
of the time during which the workman has been in the employment 
of his employer, or the casual nature of the employment, or the terms of 
the employment, it is impracticable at the date of the accident to 
compute the rate of remuneration, regard may be had to the average 
weekly amount which, during the twelve months previous to the acci- 
dent, was being earned by a person in the same grade employed at 
the same work by the same employer, or, if there is no person so em- 
ployed, by a person in the same grade employed in the same class of 
employment and in the same district; 

(b) where the workman had entered into concurrent contracts of 
service with two or more employers under which he worked at one 
time for one such employer and at another time for another such 
employer, his average weekly earnings shall be computed as if his 
earnings under all such contracts were earnings in the employment of 
the employer for whom he was working at the time of the accident; 

(c) employment by the same employer shall be taken to mean em- 
ployment by the same employer in the grade in which the workman was 
employed at the time of the accident, uninterrupted by absence from 
work due to illness or any other unavoidable cause ; 

(d) where the employer has been accustomed to pay to the workman 
a sum to cover any special expenses entailed on him by the nature of 
his employment, the sum so paid shall not be reckoned as part of the 
earnings. 



242 STATISTICS OF LABOR. [Pub. Doc. 

(3) In fixing the amount of the weekly payment, regard shall be 
had to any payment, allowance, or benefit which the workman may 
receive from the employer during the period of his incapacity, and in 
the ease of partial incapacity the weekly payment shall in no case ex- 
ceed the difference between the amount of the average weekly earnings 
of the workman before the accident and the average weekly amount 
which he is earning or is able to earn in some suitable employment or 
business after the accident, but shall bear such relation to the amount 
of that difference as under the circumstances of the case may appear 
proper. 

(4) Where a workman has given notice of an accident, he shall, if 
so required by the employer, submit himself for examination by a duly 
qualified medical practitioner provided and paid by the employer, and, 
if he refuses to submit himself to such examination, or in any way 
obstructs the same, his right to compensation, and to take or prosecute 
any proceeding under this act in relation to compensation, shall be 
suspended until such examination has taken place. 

(5) The payment in the case of death shall, unless otherwise ordered 
as hereinafter provided, be paid into the county court, and any sum 
so paid into court shall, subject to rules of court and the provisions of 
this schedule, be invested, applied, or otherwise dealt with by the court 
in such manner as the court in its discretion thinks fit for the benefit 
of the persons entitled thereto under this act, and the receipt of the 
registrar of the court shall be a sufficient discharge in respect of the 
amount paid in : 

Provided that, if so agreed, the payment in case of death shall, if 
the workman leaves no dependents, be made to his legal personal rep- 
resentative, or, if he has no such representative, to the person to whom 
the expenses of medical attendance and burial are due. 

(6) Rules of court may provide for the transfer of money paid into 
court under this act from one court to another, whether or not the 
court from which it is to be transferred is in the same part of the 
United Kingdom as the court to which it is to be transferred. 

(7) Where a weekly payment is payable under this act to a person 
under any legal disability, a county court may, on application being 
made in accordance with rules of court, order that the weekly payment 
be paid during the disability into court, and the provisions of this 
schedule with respect to sums required by this schedule to be paid into 
court shall apply to sums paid into court in pursuance of any such 
order. 

(8) Any question as to who is a dependent shall, in default of 
agreement, be settled by arbitration under this act, or, if not so settled 
before payment into court under this schedule, shall be settled by the 
county court, and the amount payable to each dependent shall be 
settled by arbitration under this act, or, if not so settled before pay- 



No. 15.] WORKMEN'S COMPENSATION ACTS. 243 

ment into court under this schedule, by the county court. Where there 
are both total and partial dependents nothing in this schedule shall be 
construed as preventing the compensation being allotted partly to the 
total and partly to the partial dependents. 

(9) Where, on application being made in accordance with rules of 
court, it appears to a county court that, on account of neglect of 
children on the part of a widow, or on account of the variation of the 
circumstances of the various dependents, or for any other sufficient 
cause, an order of the court or an award as to the apportionment 
amongst the several dependents of any sum paid as compensation, or 
as to the manner in which any sum payable to any such dependent is 
to be invested, applied, or otherwise dealt with, ought to be varied, 
the court may make such order for the variation of the former order 
or the award, as in the circumstances of the case the court may think 
just. 

(10) Any sum which under this schedule is ordered to be invested 
may be invested in whole or in part in the Post Office Savings Bank 
by the registrar of the county court in his name as registrar. 

(11) Any sum to be so invested may be invested in the purchase of 
an annuity from the national debt commissioners through the Post 
Office Savings Bank, or be accepted by the postmaster-general as a 
deposit in the name of the registrar as such, and the provisions of any 
statute or regulations respecting the limits of deposits in savings banks, 
and the declaration to be made by a depositor, shall not apply to such 
sums. 

(12) No part of any money invested in the name of the registrar of 
any county court in the Post Office Savings Bank under this act shall 
be paid out, except upon authority addressed to the postmaster-general 
by the treasury or, subject to regulations of the treasury, by the judge 
or registrar of the county court. 

(13) Any person deriving any benefit from any moneys invested in a 
post office savings bank under the provisions of this act may, never- 
theless, open an account in a post office savings bank or in any other 
savings bank in his own name without being liable to any penalties 
imposed by any statute or regulations in respect of the opening of 
accounts in two savings banks, or of two accounts in the same savings 
bank. 

(14) Any workman receiving weekly payments under this act shall, 
if so required by the employer, from time to time submit himself for 
examination by a duly qualified medical practitioner provided and paid 
by the employer. If the workman refuses to submit himself to such 
examination, or in any way obstructs the same, his right to such weekly 
payments shall be suspended until such exammation has taken place. 

(15) A workman shall not be required to submi! himself for examina- 
tion by a medical practitioner under paragraph (4) or paragraph (14) 



244 STATISTICS OF LABQR. [Pub. Doc. 

of this schedule otherwise than in accordance with regulations made by 
the secretary of state, or at more frequent intervals than may be 
prescribed by those regulations. 

Where a workman has so submitted himself for examination by a 
medical practitioner, or has been examined by a medical practitioner 
selected by himself, and the employer or the workman, as the case 
may be, has within six days after such examination furnished the 
other with a copy of the report of that practitioner as to the work- 
man's condition, then, in the event of no agreement being come to 
between the employer and the workman as to the workman's condition 
or fitness for employment, the registrar of a county court, on applica- 
tion being made to the court by both parties, may, on payment by the 
applicants of such fee not exceeding one pound [$4.87] as may be 
prescribed, refer the matter to a medical referee. 

The medical referee to whom the matter is so referred shall, in accord- 
ance with regulations made by the secretary of state, give a certificate 
as to the condition of the workman and his fitness for employment, 
specifying, where necessary, the kind of employment for which he is 
fit, and that certificate shall be conclusive evidence as to the matters so 
certified. 

Where no agreement can be come to between the employer and the 
workman as to whether or to what extent the incapacity of the work- 
man is due to the accident, the provisions of this paragraph shall, 
subject to any regulations made by the secretary of state, apply as if 
the question were a question as to the condition of the workman. 

If a workman, on being required so to do, refuses to submit himself 
for examination by a medical referee to whom the matter has been so 
referred as aforesaid, or in any way obstructs the same, his right to 
compensation and to take or prosecute any proceeding under this act 
in relation to compensation, or, in the case of a workman in receipt of 
a weekly payment, his right to that weekly payment, shall be suspended 
until such examination has taken place. 

Rules of court may be made for prescribing the manner in which 
documents are to be furnished or served and applications made under 
this paragraph and the forms to be used for those purposes and, 
subject to the consent of the treasury, as to the fee to be paid under 
this paragraph. 

(16) Any weekly payment may be reviewed at the request either of 
the employer or of the workman, and on such review may be ended, 
diminished, or increased, subject to the maximum above provided, and 
the amount of payment shall, in default of agreement, be settled by 
arbitration under this act: 

Provided that where the workman was at the date of the accident 
under twenty-one years of age and the review takes place more than 
twelve months after the accident, the amount of the weekly payment 



^o. 15.] WORKMEN'S COMPENSATION ACTS. 245 

may be increased to any amount not exceeding fifty per cent of the 
weekly sum which the workman would probably have been earning at 
the date of the review if he had remained uninjured, but not in any 
case exceeding one pound [$4.87]. 

(17) Where any weekly payment has been continued for not less 
than six months, the liability therefor may, on application by or on 
behalf of the employer, be redeemed by the payment of a lump sum 
of such an amount as, where the incapacity is permanent, would, if 
invested in the purchase of an immediate life annuity from the national 
debt commissioners through the Post Office Savings Bank, purchase an 
annuity for the workman equal to seventy-five per cent of the annual 
value of the weekly payment, and as in any other case may be settled 
by arbitration under this act, and such lump sum may be ordered by 
the committee or arbitrator or judge of the county court to be invested 
or otherwise applied for the benefit of the person entitled thereto: 
Provided that nothing in this paragTaph shall be construed as pre- 
venting agreements being made for the redemption of a weekly pay- 
ment by a lump sum. 

(18) If a workman receiving a weekly payment ceases to reside in 
the United Kingdom, he shall thereupon cease to be entitled to receive 
any weekly payment, unless the medical referee certifies that the in- 
capacity resulting from the injury is likely to be of a permanent nature. 
If the medical referee so certifies, the worlanan shall be entitled to 
receive quarterly the amount of the weekly payments accruing due 
during the preceding quarter so long as he proves, in such manner and 
at such intervals as may be prescribed by rules of court, his identity 
and the continuance of the incapacity in respect of which the weekly 
payment is payable. 

(19) A weekly payment, or a sum paid by way of redemption thereof, 
shall not be capable of being assigned, charged, or attached, and shall 
not pass to any other person by operation of law, nor shall any claim 
be set off against the same. 

(20) Where under this schedule a right to compensation is suspended 
no compensation shall be payable in respect of the period of sus- 
pension. 

(21) Where a scheme certified under this act provides for payment 
of compensation by a friendly society, the provisions of the proviso to 
the first sub-section of section eight, section sixteen, and section forty- 
one of the Friendly Societies Act, 1896, shall not apply to such society 
in respect of such scheme. 

(22) In the application of this act to Ireland the provisions of the 
County Officers and Courts (Ireland) Act, 1877, with respect to money 
deposited in the Post Office Savings Bank under that act shall apply 
to money invested in the Post Office Savings Bank under this act. 



246 



STATISTICS OF LABOR. [Pub. Doc. 



SECOND SCHEDULE. 

Arbitration, &c. 

(1) For the purpose of settling any matter which under this act is 
to be settled by arbitration, if any committee, representative of any 
employer and his workmen, exists with power to settle matters under 
this act in the case of the employer and workmen, the matter shall, 
unless either party objects by notice in writing sent to the other 
party before the committee meet to consider the matter, be settled by 
the arbitration of such committee, or be referred by them in their dis- 
cretion to arbitration as hereinafter provided. 

(2) If either party so objects, or there is no such committee, or 
the committee so refers the matter or fails to settle the matter within 
six months from the date of the claim, the matter shall be settled by a 
single arbitrator agreed on by the parties, or in the absence of agree- 
ment by the judge of the county court, according to the procedure 
prescribed by rules of court. 

(3) In England the matter, instead of being settled by the judge of 
the county court, may, if the lord chancellor so authorizes, be settled 
according to the like procedure, by a single arbitrator appointed by that 
judge, and the arbitrator so appointed shall, for the purposes of this 
act, have all the powers of that judge. 

(4) The Arbitration Act, 1889, shall not apply to any arbitration 
under this act; but a committee or an arbitrator may, if they or he 
think fit, submit any question of law for the decision of the judge of 
the county court, and the decision of the judge on any question of law, 
either on such submission, or in any case where he himself settles the 
matter under this act, or where he gives any decision or makes any 
order under this act, shall be final, unless within the time and in accord- 
ance with the conditions prescribed by rules of the Supreme Court 
either party appeals to the court of appeal; and the judge of the 
county court, or the arbitrator appointed by him, shall, for the pur- 
pose of proceedings under this act, have the same powers of procuring 
the attendance of witnesses and the production of documents as if the 
proceedings were an action in the county court. 

(5) A judge of county courts may, if he thinks fit, summon a medical 
referee to sit with him as an assessor. 

(6) Rules of court may make provision for the appearance in any 
arbitration under this act of any party by some other person. 

(7) The costs of and incidental to the arbitration and proceedings 
connected therewith shall be in the discretion of the committee, arbi- 
trator, or judge of the county court, subject as respects such judge 
and an arbitrator appointed by him to rules of court. The costs, 
whether before a committee or an arbitrator or in the county court, 
shall not exceed the limit prescribed by rules of court, and shall be 



No. 15.] WORKMEN'S COMPENSATION ACTS. 247 

taxed in manner prescribed by those rules and such taxation may be 
reviewed by the judge of the county court. 

(8) In the case of the death, or refusal or inability to act, of an 
arbitrator, the judge of the county court may, on the application of any 
party, appoint a new arbitrator. 

(9) Where the amount of compensation under this act has been 
ascertained, or any weekly payment varied, or any other matter decided 
under this act, either by a committee or by an arbitrator or by agree- 
ment, a memorandum thereof shall be sent, in manner prescribed by 
rules of court, by the committee or arbitrator, or by any party inter- 
ested, to the registrar of the county court who shall, subject to such 
rules, on being satisfied as to its genuineness, record such memorandum 
in a special register without fee, and thereupon the memorandum shall 
for all purposes be enforceable as a county court judgment. 

Provided that — 

(a) no such memorandum shall be recorded before seven days after 
the despatch by the registrar of notice to the parties interested; and 

(h) where a workman seeks to record a memorandum of agreement 
between his employer and himself for the payment of compensation 
under this act and the employer, in accordance with rules of court, 
proves that the workman has in fact returned to work and is earning 
the same wages as he did before the accident, and objects to the record- 
ing of such memorandum, the memorandum shall only be recorded, if 
at all, on such terms as the judge of the county court, under the cir- 
cumstances, may think just; and 

(c) the judge of the county court may at any time rectify the reg- 
ister; and 

(d) where it appears to the registrar of the county court, on any 
information which he considers sufficient, that an agreement as to the 
redemption of a weekly payment by a lump sum, or an agreement 
as to the amount of compensation payable to a person under any 
legal disability, or to dependents, ought not to be registered by reason 
of the inadequacy of the sum or amount, or by reason of the agree- 
ment having been obtained by fraud or undue influence, or other 
improper means, he may refuse to record the memorandum of the 
agreement sent to him for registration; and refer the matter to the 
judge who shall, in accordance with rules of court, make such order 
(including an order as to any sum already paid under the agreement) 
as under the circumstances he may think just; and 

(e) The judge may, within six months after a memorandum of an 
agreement as to the redemption of a weekly payment by a lump sum, 
or of an agreement as to the amount of compensation payable to a 
person under any legal disability, or to dependents, has been recorded 
in the register, order that the record be removed from the register on 
proof to his satisfaction that the agreement was obtained by fraud 
or undue influence or other improper means, and may make such order 



248 STATISTICS OF LABOR. [Pub. Doc. 

(including an order as to any sum already paid under the agreement) 
as under the circumstances he may think just. 

(10) An agreement as to the redemption of a weekly payment by a 
lump sum if not registered in accordance with this act shall not, nor 
shall the payment of the sum payable under the agreement, exempt 
the person by whom the weekly payment is payable from liability to 
continue to make that weekly payment, and an agreement as to the 
amount of compensation to be paid to a person under a legal disability 
or to dependents, if not so registered, shall not, nor shall the payment 
of the sum payable under the agreement, exempt the person by whom 
the compensation is payable from liability to pay compensation, unless, 
in either case, he proves that the failure to register was not due to 
any neglect or default on his part. 

(11) Where any matter under this act is to be done in a county 
court, or by, to, or before the judge or registrar of a county court, 
then, unless the contrary intention appear, the same shall, subject to 
rules of court, be done in, or by, to, or before the judge or registrar 
of, the county court of the district in which all the parties concerned 
reside, or if they reside in different districts the district prescribed by 
rules of court, without prejudice to any transfer in manner provided by 
rules of court. 

(12) The duty of a judge of county courts under this act, or in 
England of an arbitrator appointed by him, shall, subject to rules of 
court, be part of the duties of the county court, and the officers of the 
court shall act accordingly, and rules of court may be made both for 
any purpose for which this act authorizes rules of court to be made, 
and also generally for carrying into effect this act so far as it affects 
the county court, or an arbitrator appointed by the judge of the county 
court, and proceedings in the county court or before any such arbitrator, 
and such rules may, in England, be made by the five judges of county 
courts appointed for the making of rules under section one hundred 
and sixty-four of the County Courts Act, 1888, and when allowed by 
the lord chancellor, as provided by that section, shall have full effect 
without any further consent. 

(13) No court fee, except such as may be prescribed under para- 
graph (15) of the first schedule to this act, shall be payable by any 
party in respect of any proceedings by or against a workman under 
this act in the court prior to the award. 

(14) Any sum awarded as compensation shall, unless paid into court 
under this act, be paid on the receipt of the person to whom it, is pay- 
able under any agreement or award, and the solicitor or agent of a 
person claiming compensation under this act shall not be entitled to 
recover from him any costs in respect of any proceedings in an arbitra- 
tion under this act, or to claim a lien in respect of such costs on, or 
deduct such costs from, the sum awarded or agreed as compensation, 
except such sum as may be awarded by the committee, the arbitrator, 



I^o. 15.] WORKMEN'S COMPENSATION ACTS. 249 

or the judge of the county court, on an application made either by the 
person claiming compensation, or by his solicitor or agent, to determine 
the amount of costs to be paid to the solicitor or agent, such sum to be 
awarded subject to taxation and to the scale of costs prescribed by 
rules of court. 

(15) Any committee, arbitrator, or judge may, subject to regulations 
made by the secretary of state and the treasury, submit to a medical 
referee for report any matter which seems material to any question 
arising in the arbitration. 

(16) The secretary of state may, by order, either unconditionally or 
subject to such conditions or modifications as he may think fit, confer on 
any committee representative of an employer and his workmen, as 
respects any matter in which the committee act as arbitrators, or which 
is settled by agreement submitted to and approved by the committee, all 
or any of the powers conferred by this act exclusively on county courts 
or judges of county courts, and may by the order provide how and 
to* whom the compensation money is to be paid in cases where, but for 
the order, the money would be required to be paid into court, and the 
order may exclude from the operation of provisos (d) and (e) of 
paragraph (9) of this schedule agreements submitted to and approved 
by the committee, and may contain such incidental, consequential, or 
supplemental provisions as may appear to the secretary of state to be 
necessary or proper for the purposes of the order. 

(17) In the application of this schedule to Scotland — 

(a) "County court judgment" as used in* paragraph (9) of this 
schedule means a recorded decriee arbitral: 

(6) Any application to the sheriff as arbitrator shall be heard, tried, 
and determined summarily in the manner provided by section fifty-two 
of the Sheriff Courts (Scotland) Act, 1876, save only that parties may 
be represented by any person authorized in writing to appear for them 
and subject to the declaration that it shall be competent to either 
party within the time and in accordance with the conditions prescribed 
by act of sederunt to require the sheriff to state a case on any question 
of law determined by him, and his decision thereon in such case may be 
submitted to either division of the court of session, who may hear and 
determine the same and remit to the sheriff with instruction as to the 
judgment to be pronounced, and an appeal shall lie from either of such 
divisions to the House of Lords. 

(c) Paragraphs (3), (4), and (8) shall not apply. 

(18) In the application of this schedule to Ireland the expression 
" judge of the county court " shall include the recorder of any city or 
town, and an appeal shall lie from the court of appeal to the House 
of Lords. 



250 



STATISTICS OF LABOR. [P. D. No. 15. 



THIRD SCHEDULE. 



Description o£ disease. 



Description of process 



Anthrax, ..... 

Lead poisoning or its sequelse, . 

Mercury poisoning or its sequelae, 

Phosphorus poisoning or its sequelae, 

Arsenic poisoning or its sequelae. 

Ankylostomiasis, .... 



Handling of wool, hair, bristles, hides, and skins. 

Any process involving the use of lead or its prepa- 
rations or compounds. 

Any process involving the use of mercury or its 
preparations or compounds. 

Any process involving the use of phosphorus or 
its preparations or compounds. 

Any process involving the use of arsenic or its 
preparations or compounds. 

Mining. 



Where regulations or special rules made under any act of Parliament 
for the protection of persons employed in any industry against the 
risk of contracting lead poisoning require some or all of the persons 
employed in certain processes specified in the regulations or special 
rules to be periodically examined by a certifying or other surgeon, 
then, in the application of this schedule to that industry, the expression 
" process " shall, unless the secretary of state otherwise directs, include 
only the processes so specified. 



LB D '07 






j^JW- ,?» ' J/''- "■^■^^^'' ,^i^, k',<V^ , '''.'..'; :„ 



■•^ . 



PUBLICATIONS OF THE 

BUEEAU OF Statistics of Labor. 

The following issues of the annual reports of this Department remain In print and will 
be forwarded when requested, upon receipt of the price set against each Part and bound 
volume. 



Annual Report on tlto Statistics 
of I<abor. 

1898. Bound in cloth, postage 15 cents. 
This report contains a special report on 
Unemployment, and Labor Chronology for 
the year 1893; this latter will be mailed 
separately for 5 cents. 

1806. Bound in cloth, postage 15 cents. 
Contains, I. Social and Industrial Changes 
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II. Graded Weekly Wages, 1810-1891, second 
part (postage 10 c.) ; III. Labor Chronology 
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1807. Bound in cloth, postage 15 cents. 
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Wages, 1810-1891, third part (postage 10 c.) ; 

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1898. Bound In cloth, postage 25 cents. 
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part (postage 15 c.) ; III. Labor Chronology 
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1800. Bound In cloth, postage 15 cents. 
Contains, I. Changes in Conducting Retail 
Trade In Boston since 1874 (postage 5 c.) ; 
II. Labor Chronology for 1899 (postage 
10 c). 

1900. Bound in cloth, postage 25 cents. 
Contains, I. Population of Massachusetts in 
1900; II. The Insurance of Workingmen 
(postage 10 c.) ; III. Graded Prices, 1816- 
1891 (postage 15 c.). 

1903. Bound In cloth, postage 15 cents. 
Contains, I. Race In Industry (postage 5 c.) ; 

II. Free Employment Offices in the United 
States and Foreign Countries (postage 5 c.) ; 

III. Social and Industrial Condition of the 
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Labor and Industrial Chronology for 1903 
(postage 5 c.) . 

1905. Bound in cloth, postage 20 cents. 
Contains, I. Industrial Education of Work- 
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factures in Massachusetts and the Southern 
States (postage 5 c.) ; III. Old-age Pensions 
(postage 5 c.) ; IV. Industrial Opportunities 
not yet TJtilized in Massachusetts (postage 
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1904 (postage 5 c.) ; VI. Labor and Indus- 
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1906. Bound in cloth, postage 20 cents. 
Contains, I. The Apprenticeship System 



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(postage 10 c.) . 

1007. Part I. Strikes and Lockouts in 
Massachusetts, 1906 (postage, 5 c). 

Annual Report on the litatlstles 
of Manufactures. 

Publication begun in 1886, but all volumes 
previous to 1892 are now out of print. Each 
volume contains comparisons, for identical 
establishments, between two or more years 
as to Capital Devoted to Production, Goods 
Made and Work Done, Stock and Materials 
Used, Persons Employed, Wages Paid, 
Time in Operation, and Proportion of Busi- 
ness Done. The Industrial Chronology 
which forms a Part of each report up to 
and including the year 1902 presents an In- 
dustrial Chronology by Towns and Indus- 
tries. Beginning with the year 1903, the 
Industrial Chronology is combined with 
that for Labor under the title of Labor and 
Industrial Chronology and forms a part of 
the Annual Report on the Statistics of 
Labor. Beginning with the year 1904, the 
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volume and now forms a part of the Report 
on Labor. 

The volumes now remaining in print are 
given below, the figures in parentheses in- 
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1802 (15 c.); 1803 (15 c.); 1804 (16 c.) ; 
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Special Reports. 

A Manual of Distributive Co-operation— 
1885 (postage 6 c.). 

Reports of the Annual Convention of the 
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Labor Bulletins 



OF THS 



Commonwealth of Massachusetts. 

These Bulletins contain a large variety of interesting and pertinent matter on the Social 
and Industrial Condition of the Workingman, together with leading articles on the Condi- 
tion of Employment, Earnings, etc. The following numbers are the only ones now remain- 
Ing in print, and will be forwarded upon receipt of five cents each to cover the cost of postage. 



No. 29, JTannary-, 1904. Eight-hour 
Day — Licensing of Barbers — Early Clos- 
ing and Half-holiday Laws of Australasia 

— Industrial Studies, Proprietors — Palaces 
for the People — Quarterly Record of 
Strikes. 

No. 86, Jane, 1905. Tramps and 
Vagrants. Census of 1905 — The Loom Sys- 
tem—Weekly Day of Rest— Wages and 
Hours of Labor on Public Works — The Cen- 
BUS Enumerators of 1905 — Average Retail 
Prices, October and April— Semi-annual 
Record of Strikes and Lockouts : Six Months 
ending April 30, 1905 — Labor Legislation in 
Massachusetts for 1905— Current Comment 
on Labor Questions: Profit Sharing — In- 
dustrial A gi-eements- Recent Legal Labor 
Decisions— Excerpts Relating to Labor, In- 
dustrial, Sociological, and General Matters 
of Public Interest — Statistical Abstracts. 

No. 43, July, 1906. Non-Collectable 
Indebtedness — Pawnbrokers* Pledges — 
Hours of Labor iu Certain Occupations 

— Labor Legislation in 1906 — Cxirrent Com- 
ment on Labor Questions : The Inheritance 
Tax — Industrial Information — Industrial 
Agreements — Trade Union Notes — Recent 
Legal Labor Decisions — Excerpts Relating 
to Labor, Industrial, Sociological, and Gen- 
eral Matters of Public Interest — Statistical 
Abstracts. 

No. 43, September, 1906. Organi- 
zation of Trade Schools — Textile Schools 
in the United States — Convention of Labor 
Bureaus — Maternity Aid — Stone-meal as a 
Fertilizer — Injunctions against Strikes and 
Lockouts — Industrial Information — Indus- 
trial A greements — Trade Union Notes — 
Recent Legal Labor Decisions — Excerpts 

— Statistical Abstracts —Trade Union Direc- 
tory for 1906. 



No. 46, FebmarT-, 1907. Unemploy- 
ment in Massachusetts — State Free Em- 
ployment Office — Insurance against Un- 
employment in Foreign Countries — The 
Metropolitan District— Population : Boston 
and Massachusetts — Labor Legislation : 
United States and Canada, 1906 — Industrial 
Agreements — Excerpts — Statistical Ab- 
stracts — Industrial Information. 

No. 50, Jnne, 1907. Manufactures: 
Massachusetts and Other States, No. 3, Com- 
parison by States — Changes in Rates of 
Wages and Hours of Labor in Massachu- 
setts, 1906 — Free Employment Offices — Es- 
timated Population of Massachusetts Cities, 
1906-1910 — Trade Unions in Foreign Coun- 
tries—Quarterly Record of Strikes and 
Lockouts — Trade Union Notes — Industrial 
Agreements — Recent Court Decisions Re- 
lating to Labor — Excerpts — Statistical Ab- 
stracts — Industrial Information — Index to 
Bulletins Nos, 45 to 50. 

No. 51, Jnly-ADenst, 1907. The 
Place of Birth of the Inhabitants of Massa- 
chusetts—The Place of Birth of the Inhab- 
itants of the City of Boston — Massachusetts 
Forestry— The Deaf — Wage Agreements in 
Fall River Cotton Mills — Labor Legislation 
in Massachusetts; 1907 — Help Wanted in 
New England's Cotton Mills — Free Em- 
ployment Offices in Foreign Countries — 
Municipal Pawn Shops in France and 
Germany — Employees' Mutual Benefit As- 
sociations in Massachusetts, 1906 — Move- 
ment of Manufacturing Establishments in 
Massachusetts, 1906 — Factory Construction 
in Massachusetts, 1906 — Failures in Massa- 
chusetts, 1906 — Trade Union Notes — Indus- 
trial Agreements — Recent Court Decisions 
Relating to Labor — Excerpts — Statistical 
Abstracts — Industrial Information. 



